The Chamber of Deputies approved a bill that bans advertising calls not authorized by consumers. How is it different from Do Not Disturb?
The bombardment of unwanted calls for advertising purposes may come to an end in Chile: the Chamber of Deputies approved a bill that obliges companies to have the explicit consent of customers to contact them, either for advertising purposes or for collection management.
The measure, which has already been sent to the Senate, stems from two different motions, explains Gonzalo Bravo, senior associate in the Public Law and Regulated Markets/Consumer group of Albagli Zaliasnik (AZ). The first of them results from Bulletin No. 15.610-03, which aimed to regulate the constant advertising telephone calls made without the consumer’s prior consent.
“The second motion, Bulletin No. 16.041-03, seeks to establish new regulations regarding extrajudicial collection efforts made by companies or third parties, in order to impose new obligations and avoid continuous harassment of consumers. To this end, it is proposed to amend Law No. 19,496 on the Protection of Consumers’ Rights and Law No. 18,168 General Telecommunications Law”, it states.
How does this framework differ from the ‘Do Not Disturb’ platform?
Today, current regulations establish an opt-out mechanism, i.e., companies that carry out promotional or advertising communications are obliged to include an easily accessible contact so that recipients can proactively request the suspension of telephone calls or mass mailings, whether postal or electronic.
This framework finds an important antecedent in the enabling of ‘Do not disturb’, a platform that, according to Josefina Yávar, partner of the Commercial practice of Cuatrecasas Chile, was enabled, as a first version, in 2013 by the National Consumer Service (Sernac), in order to facilitate the management of consumer requests for their data to be excluded from the databases of companies.
“Then, in 2020, progress was made with the publication of a regulation that regulates the operation of the system and has two objectives: to give legal certainty to suppliers and grant adequate protection to consumers,” he explains.
However, according to Congresswoman Maite Orsini, from Frente Amplio and co-author of the bill, ‘Do Not Disturb’ did not achieve its objective: “According to a balance of Sernac, in 2021 annoying calls by companies increased 94% compared to 2020. And even worse: a report by the Undersecretary of Telecommunications shows that in 2022, 1.3 billion spam calls were received, that is, an average of 3.5 million calls per day”, he assures.
In case it gets the green light in the Senate, spam communications will be prohibited and companies will only be able to contact consumers if they have their consent.
“The bill seeks to more effectively limit spam to consumers, establishing that advertising or promotional calls and instant messages will only be lawful if the consumer has given prior, express and specific consent to receive them. In turn, the provider must prove that it has the consent, which is always revocable. In this sense, the bill changes the regulation to an opt-in system, eliminating the burden and responsibility that falls on the consumer, who currently must request the suspension of telephone calls and instant messages, for the purposes of considering such communications contrary to the regulations”, specifies Yávar.
“No is no”
Consent takes on a leading role in this new project: it must be prior, express, specific, free and informed. It must also comply with current personal data protection regulations.
“Currently, the text of the bill states that consent must be given by means of a written declaration, an equivalent electronic means or an affirmative act that clearly shows the owner’s will. At the same time, it establishes an express prohibition for companies to obtain consent when telephone contact has already been initiated and, in addition, it will be presumed that consent is not free when it is given within the framework of the conclusion of a contract”, Bravo explains.
According to the Albagli Zaliasnik associate, this last point is relevant, because otherwise, suppliers would have managed to comply with a large part of the new obligations by the mere fact of including a statement in the totality of their model contracts with consumers.
Read the full note here. Source: LexLatin 24 October [See here].
