Burger King campaign hurts LGPD? Expert explains

A few days after Black Friday, Burger King opted for a different strategy to promote one of its promotions aimed at the most expected date of the consumerist calendar. Known for the production of guerrilla marketing actions and more disruptive, the brand used, on Monday (25), PIX as a dissemination strategy, transferring R$ 0.01 to customers of the BK Club. The messages highlight that with just a few cents more, it is already possible to take advantage of special offers.

But, after all, the campaign of the restaurant chain specialized in fast food, can it hurt the General Law of Protection of Personal Data (LGPD)? Alexander Coelho, partner at Godke Advogados and specialist in Digital Law and Data Protection, there are indications that the campaign may, yes, hurt the LGPD, depending on how the data was treated and the absence (or not) of specific consent.

“The most critical points are the question of purpose, since consumers have provided PIX keys for financial transactions, not for marketing. Using them for another purpose may characterize purpose deviation.Second aspect: explicit consent, for such use, would be a safer legal basis. Otherwise, the use of legitimate interest would need to be very well grounded in a data protection impact report (DPIA), which does not always occur in practice. Third point is transparency: were consumers aware and agreed that their data would be used for this campaign?”, the lawyer questions.

Coelho explains that PIX, as a means of payment, is not designed for commercial communications or marketing. “However, if the data used comes from a legitimate prior relationship, such as a loyalty program or purchase history, and respects the legal basis of legitimate interest, the company can argue that it is supported by”, he pondered.

The practice, however, is not without risks. The use of data for purposes other than those previously informed to the holder can be considered a deviation of purpose (art. 6, I of the LGPD). The expert also points out that the use of PIX as a means of communication is a new terrain and lacks specific regulation.

“Although creative, this Burger King action is in a grey zone of the LGPD. To avoid burnout, companies must align their marketing strategies with good data protection practices, ensuring that their campaigns are not only innovative, but also respect the privacy of their customers. After all, the line between creative engagement and data abuse is tenuous and, as they say, 'missing is human, but making mistakes with PIX can be viral”, he concludes.

How protect yourself?

According to lawyer Alexander Coelho, consumers can take the following measures when facing campaigns with the strategy presented by the network:

• Consult the loyalty program: Check the terms and conditions of the program to understand how your data may be used.
• Require clarification: Request the company, based on the right to information of the LGPD, how the data were obtained and what were the legal bases for the treatment.
• Complain to ANPD: If they identify that there has been a violation of their rights, they can formalize a complaint with the National Data Protection Authority (ANPD).
• Attention to consent: Always review the permissions granted when joining loyalty programs or promotions.
• Be careful with PIX keys: Use a less sensitive key (such as email or phone), especially in situations involving registration on commercial platforms.