The draft law of personal data that is disculte in the Senate, represents a great opportunity for u n framework of privacy protection, and at the same time enabling applications beneficial and innovative data in a business environment and technology in constant evolution. This, will undoubtedly ensure the economic competitiveness of the country.
To reach the goal, must take into account certain aspects, such as the fact that this framework should not involve on regulation, which translates into increases in costs, especially for small and medium-sized enterprise structures, making them less competitive not only local but also global level.
Although we believe that the text of the draft fairly achieved a balance between the protection of the privacy of citizens and the circulation of information, understanding it as a key driver of the development of the digital economy, it must have as principles: one, will follow standards OECD body which Chile is party, and which is not governed by the rules of the Treaty, of which Chile does not participate, such as the European Union; and two, that does not discriminate with respect to any industry.
Thus, we are concerned about the fact that in the text approved in general by the Senate, you are including provisions taken from the European model to protect the holder of personal data, but in a way away to our legal tradition.
So far, the approved text includes the possibility of excluding to consent, as a legal basis for the processing of personal data, where there is a “blatant imbalance” between the Manager and the owner of personal data. This articles deserves the following criticisms: (i) the first is that the European regulation (GDPR for its acronym in English) includes it as a recital, that is, as a principle of interpretation, but in no case is set as a provision in the understood that this is impractical, since companies that perform treatment must obtain consent whenever they want to provide a service; (ii) is unnecessary, since it is the Chilean common law (Civil Code) already regulates the imbalance with regard to the so-called vices of consent (error, force and fraud), procurement; and (iii) the blatant imbalance (not be defined in the text of the draft law) oblige the authority to predefine scenarios in which there will be a blatant imbalance, preventing in this way, the existence of a uniformity in rulings.
Another element, already taken by the Executive in the directions, points to the regulation of search engines as responsible for the treatment of personal data, which the Chilean jurisprudence has pointed out in a sustained manner are not responsible for data personal, but who are those who generate the contents of a web site. The search engine, is only an index that facilitates access to such content.
In this way, it catches the eye that provisions which are aimed at regulating companies with names and surnames (which is the case of search engines), and must instead establish a general framework and leave in the hands of the authority, if a reported done or not, a processing of personal data, and then if fit you or not liability from a complaint made.
For this reason, the call is not about regular and not to discriminate in the digital environment, in the name of privacy. We understand and we want to be so, that there must be facilities for the digital economy is in our legislation a correct balance that allows them to grow in Chile.
Poured in this op-ed content is the sole responsibility of the author and do not necessarily reflect the editorial line nor the counter position.
