Category: Jota Column

Ana Frazão column on Jota 01/10: Business secret and procedural secrecy – How to reconcile the protection of the secret with the right to proof and contradictory and the effectiveness of jurisdiction?

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Ana Frazão discusses the limits of company secrecy in court and arbitration proceedings

New column article Constitution, Company and Market, from the portal JOTA, Professor Ana Frazão asks how reconcile the protection of business secrecy with the right to proof, contradictory and effective jurisdiction. The theme gains weight with the digital economy, in which many illicit conducts are practiced by opaque algorithms.

Business secret is not immunity

The article recognizes the importance of company secrecy to preserve the value created by economic agents and conditions of competition. But remember, if he's treated as absolute, he could become a real immunity before state or arbitral jurisdiction. According to the author, art. 206 of the Industrial Property Law itself admits the breach of secrecy in judgment, provided that there are due precautions.

Highlight Phrase:

"The secrecy of a company does not confer – and cannot confer – absolute protection on its holder in evidentiary terms."

Procedural solutions for a possible balance

The teacher proposes some paths for the judges:

  • consistent criteria for defining what business secrecy is;
  • adequate distribution of the burden of justifying secrecy and breach, including to avoid fishing expeditions;
  • granularized procedural secrecy, with versions of the documents with stripes;
  • confidentiality clubs, in which only a few lawyers, experts and the judge access the complete proof;
  • date rooms.

The text cites decisions of the STJ, such as the Take Off case and the figure of the digital inventor. It also warns of the risks of absolute protection of the source code in the digital economy.

Highlight Phrase:

"If the protection of the code is absolute, the agents who use it will have a true immunity to violate other people's rights without those affected being able to prove the violation."

The article reinforces Ana Frazon's contribution to the debate on business law, competition and proceedings.

🔗 Read the full article in JOTA: https://www.jota.info/opiniao-e-analysis/columns/company-and-market/company-and-process secret

Ana Frazão's column on the 24/09 Jota: Right of access to the digital world – New outlines of the discussion due to technological advances.

Posted on by Bárbara

Ana Frazão analyzes the new contours of the right of access in the digital world

In article published on September 24, 2026 in the column Constitution, Company and Market, from the portal JOTA, Professor Ana Frazão discusses how technological advances are transforming the debate on the right of access. This subject has traditionally been dealt with by competitive and regulatory law based on the doctrine of essential facilities.

From physical bottlenecks to digital ecosystems

In the article, the teacher shows that competitive bottlenecks are no longer limited to physical infrastructure. They include platforms, operating systems, APIs, app stores, data sets, means of payment, cloud infrastructure and ranking. In this scenario, it's not enough to be on the platform. Positioning and visibility are decisive for rivalry.

Highlighted phrase:

"In the digital economy, the focus of the discussion ceases to be on those who own the infrastructure and move to those who have the governance of the technological ecosystem."

Data, interoperability and algorithmic governance

The text also addresses:

  • the debate on considering personal data as essential facilities;
  • the practical challenges of data sharing;
  • the role of interoperability;
  • the risks of lack of transparency in algorithmic governance, especially when the infrastructure holder competes with the users themselves.

The author also deals with the regulation ex antewith Digital Markets Act European and PL 4675/2025, known as "Brazilian DMA". It also mentions the new challenges brought by artificial intelligence and the green transition.

"It seems that we need a regulatory package that goes beyond competitive issues, and even with regard to them, it may require other approaches than that offered by traditional antitrust control of conduct."

The article reinforces Ana Frazon's contribution to the debate on competition, regulation and digital economy.

🔗 Read the full article in JOTA: https://www.jota.info/opiniao-e-analysis/columns/company-and-market/access-right-in-the-world-digital

Ana Frazão column in Jota 10/09: Corporate civil liability in the face of uncertainties – The relationship between the precautionary principle and the duty of care.

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Following the previous column, Ana Frazão analyzes the relationship between the precautionary principle and the duty of care. The article discusses the challenges of extending civil liability to damages that escape the usual notions of risk — frequent scenario in Environmental Law and regulation of artificial intelligence — and presents, from the original wording of PL 2338/23, an intermediate criterion: responsibility for uncertainties that can already be considered based on incipient, incomplete or speculative evidence.

Link: Corporate civil liability in the face of uncertainties – The relationship between the precautionary principle and the duty of care.

Ana Frazão's column in the 3/09 Jota: Corporate civil responsibility and duty of care – Progressively, the duty of care assumes the role of the guiding thread of subjective civil responsibility as the objective.

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In her column in JOTA, Ana Frazão discusses the distinction between subjective and objective civil responsibility and shows that the duty of care has become a common element in both modalities. The article examines why the risk-based liability does not dispense with the analysis of the entrepreneur's conduct, points the reservations to the so-called comprehensive risk and deals with the relevance of predictability and the calculation of the damage for the delimitation of the risk itself. Link: https://www.jota.info/opiniao-e-analysis/columns/company-and-market/business-civil liability-and-care https://www.jota.info/opiniao-e-analysis/columns/company-and-market/business-civil liability-and-care