We invite you to read the article of Diario Financiero in which our senior associate, Antonia Nudman, commented on the new Data Protection Law that would put an end to the sale of databases and spam calls.
Experts pointed out that the new legal enabling conditions for data processing, such as informed consent, will limit these practices.
One of the most unethical practices are spam communications – telephone calls, SMS messages and e-mails – for the promotion and sale of products without the consent of the owner.
Although the National Consumer Service (Sernac) has set up a system to block them and there is an anti-spam bill under discussion in Congress, the recently approved Personal Data Protection Law and Data Protection Agency could put a definitive end to them.
Antonia Nudman, lawyer and senior associate of Albagli Zaliasnik’s IP, Tech and Data Group, explained that there are two articles of the new law, the 12th and 13th that could affect ‘significantly’ and transversally, a number of industries that use call center and contact center services for the sale of credit, insurance, telephone plans, AFP changes, Isapres plans, among others.
Article 12 establishes that the processing of data is lawful when the owner grants his consent; while article 13 determines five cases in which it is lawful to process data without the owner’s consent, for example, for banking obligations, legal obligations, signing contracts, legitimate interest and in the case of defense of a right in courts or public bodies.
Nudman explained that these articles establish new sources of lawfulness, i.e., ‘legal enabling factors for companies to process personal data‘. Thus, companies will have to verify that they are legally authorized to process the data of data subjects and inform the purpose of such processing.
The lawyer also stated that if the owner of the data gives his consent, but the company does not specify what the data will be used for, the consent would not apply as a source of lawfulness because the purpose would not be fully informed.
For example, a company can carry out advertising and marketing campaigns and send emails requesting consent, but if it never states that it will call you to offer you the service, that consent is not sufficiently informed either,‘ she said.
A bill that seeks to prohibit advertising telephone calls without the consumer’s consent is currently in the first constitutional procedure in Congress. However, Macarena Gatica, a lawyer and expert in protection and cybersecurity and partner at Alessandri Abogados, commented that the new data protection law ‘is sufficient and another bill would not be necessary’ to address these practices.
Database sales
It is a common practice in the country for people to give their personal data in the framework of an online promotion or a face-to-face event. The problem is that these companies often transfer or sell the databases obtained in this way to other entities for marketing or sales, a purpose that was not reported.
Nudman explained that today the sale of databases is not regulated, but the new law establishes that personal data can be transferred with the consent of the owner, and without it, only in those exceptions stipulated in article 13.
He added that, in the event that only consent is applied as a basis for lawfulness, ‘it will be important that it has contemplated the assignment when it was granted, otherwise it will have to be granted again’.
Meanwhile, the Undersecretary General of the Presidency, Macarena Lobos, who acted on behalf of the Executive in the processing of the bill, commented that since the future law does not contemplate any specific basis of lawfulness for the generalized processing or commercialization of databases, this type of practice would result in non-compliance with the regulations, which would entail an infraction and a fine.
Industry impact
Undersecretary Lobos pointed out that the different companies that use and process data will have to adapt to the principles of the regulation, especially with regard to informing data subjects of the purpose of data use, and ruled out that the telemarketing industry will disappear as a result of the new regulation.
The Republican deputy, Luis Sánchez, also agreed, stating that it is ‘difficult’ for this industry to disappear.
Evidently there are rules regarding the handling of personal data that are transgressed in this industry, such as the right to request to be removed from a database,’ he said.
However, he pointed out that the regulation will not be a real deterrent to adjust their behavior, ‘because the fines are so disproportionate and the criteria for its application is so arbitrary, that they are going to overturn it in the Constitutional Court’.
For attorney Nudman, many of the call center and contact center companies will be forced to change their sales channels, but ‘this will depend on their adaptation during the 24 months of the law’s entry into force, once it is published in the Official Gazette’.
