Data protection and cybersecurity laws in Chile

Data protection

1. Local data protection laws and scope

The principal data protection legislation is Law 19.628 “on protection of private life” (also known as the Chilean Data Protection Law or “CDPL”). 

There are also two other legal provisions that regulate some aspects of personal data processing:

  • The Chilean Constitution, in its article 19 No. 4 and No. 5, which enshrine the right to privacy, as well as the protection of personal data, and also;
  • Law 19.496 (Consumer Protection Law) that establishes the regulation regarding unsolicited commercial marketing communications for consumers.

2. Data protection authority

Chile does not have a Data Protection Authority.

3. Anticipated changes to local laws

Congress is discussing a new law that will replace the current one and raise the protection standards.

Anticipated changes:

  • A new legal definition: The objective will be to update and expand it, in accordance with international standards;
  • Legitimate Basis for Processing: A more robust basis for processing has been incorporated;
  • The creation of a Data Protection Authority: A National Directorate for Personal Data Protection with the obligation to register databases;
  • Cross-Border Data Transfer: It will be regulated for the first time. According to the current law, there is no statement that controls cross-border data transfers.
  • A new set of infringements;
  • A complaint procedure: This procedure will consist of three steps. First, a direct claim to the data processor. Secondly, an administrative claim before the new National Directorate for Personal Data Protection, and finally, a judicial claim that disputes the decision of the National Directorate for Personal Data Protection.

4. Sanctions & non-compliance

Since there is no Data Protection Authority, sanctions can only be imposed by a judge (in a civil procedure). To this end, Law 19.628 establishes a special procedure called “habeas data”. However, it is common practice to also use the “Remedy for the Protection of Constitutional Rights”, a constitutional action, to protect the fundamental rights affected by an illegal or arbitrary treatment of personal data.

5. Registration / notification / authorisation

There is no registration or notification obligation since there is no data protection authority in Chile and the law does not establish this requirement.

6. Main obligations and processing requirements

Data processing: 

According to the CDLP the processing of all data shall be carried out:

  • In a manner consistent with the law;
  • For the purposes permitted by the legal system; and
  • With attention to the full exercise of the fundamental rights of the data subject.

Consent of the data subject: Article 4 of the law establishes that the processing of personal data is permitted only when the law authorises it, or the subject expressly consents or authorises it. However, the law does not provide a definition of what the “authorisation” or “consent” of the data subject means or entails.

Quality: Article 6 of the law establishes that personal data will be: destroyed or cancelled when the purpose of its storage has no legal basis or when it has expired; modified when it is inaccurate, inexact, misleading or incomplete; and blocked when it cannot be destroyed or cancelled, and its accuracy cannot be established or whose validity is doubtful.

Confidentiality: Article 7 of the law establishes that people who work in the processing of personal data, in the private and public sector, must maintain confidentiality when the data comes from sources not accessible to the public, as well as with respect to other data information related to the data bank; an obligation that does not cease upon completion of its functions or activities in that field.

Purpose: Personal data will be used only for the purposes for which it was collected, unless it is obtained from sources accessible to the public (Article 9 of the law)
Personal data: Article 10 of the law prescribes that sensitive personal data, defined as any information regarding characteristics of a physical or moral nature of an individual or facts or circumstances of his private life, such as personal habits, racial or ethnic origin, ideologies and political opinions, religious beliefs or convictions, physical or mental health and sexual life, cannot be processed unless:

  • The law authorises it;
  • The data subject expressly accepts said processing;
  • Such data is necessary to establish or grant health benefits that pertain to the respective data subject.

Data security: Article 11 of the law establishes that those responsible for the registries or personal data must “take care of them with due diligence” and be liable for damages.

7. Data subject rights

Access to data

The rights pertaining to all data subjects to demand from the person responsible for any public or private data bank, any information that pertains to them, its source, the purpose for collecting, the legality of the data processing and the name of the individuals or entities to which the data is regularly transmitted. 

Correction and deletion

Correction or modification: The right of all data subjects to request the modification of inaccurate, incomplete, misleading or outdated data that concerns them.

Cancellation

The right of all data subjects to demand the destruction or cancellation of personal data when the purpose of its storage has no legal basis or when it has expired.
Data subjects have the right to request the cancellation of data, if the data storage is not authorised by law or if the authorisation has expired. The data subject is also entitled to exercise this right even if this data has been voluntarily provided or is being used for commercial communications, and he no longer wishes to appear in such records, temporarily or permanently.

Marketing objection

The Consumer Protection Law regulates unsolicited commercial or marketing communications sent by email to consumers. That communication must obtain a valid email address to which the recipient may request the suspension of future communications.

8. Processing by third parties

The laws do not regulate processing by third parties. According to Article 8 of the CDLP:
If the processing of personal data is carried out by virtue of a mandate, the general rules will apply. Also, the mandate must be granted in writing, regulating the conditions of use of the data.

9. Transfers out of country

The law does not establish specific requirements or restrictions on transfers of personal data abroad.

However, the law contains rules for the automated transmission of data. Article 5 of the law prescribes that the person responsible for the database can establish an automated system for the transmission of personal data, provided that it adequately ensures the rights or interests of the parties involved and such transmission is strictly related to the duties and objectives of the participating entities.

In the case of a request for the transmission of personal data through an electronic network, the following shall be recorded:

  • Identification of the requesting party;
  • Reason and purpose of the request;
  • Type of data transmitted.

The law does not restrict transfers of personal data to third countries.

Since there are no data transfer restrictions, foreign companies mostly rely on standard clauses to binding corporate rules established by EU legislation. 

The transfer of personal data does not require registration/notification or prior approval from the relevant data protection authority or entity (given the fact that this body does not exist)

10. Data Protection Officer

There is no legal requirement for the appointment of a Data Protection Officer.

11. Security

There are no legal requirements to take appropriate technical and security measures to protect personal data, but the data processor will always be liable for the damages caused by the leaking of information.

12. Breach notification

There is no legal obligation to notify to the authority data breach events.

13. Direct marketing

Direct marketing is regulated by the Consumer Protection Law. This Law regulates unsolicited commercial marketing communications sent by email to consumers, specifying, among other things, that such communications must contain a valid email address to which the recipient may request the suspension of further communications, also known as an opt-out system. From the moment the recipient requests the suspension of sending further emails, any communication or unsolicited email is prohibited by law.

14. Cookies and adtech

The CDPL does not directly regulate the use of cookies or similar technologies. 

15. Risk scale

Low

Cybersecurity

1. Local cybersecurity laws and scope

Chile does not have a specific law to regulate cybersecurity. However, many laws regulate some aspects of cybersecurity, for example:

  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity on critical and emergency conditions of the public telecommunications system
  • Ley N°20.285/2008 - Law on access to public information
  • Ley N°17.336/2004 - Intellectual Property Law
  • Ley N°19.927/2004 - Law amending criminal codes regarding child pornography crimes
  • Ley N°19.880/2003 - Law that establishes the bases of the administrative procedures that govern the acts of State administration bodies
  • Ley N°19.799/2002 - Law on electronic documents, electronic signature and certification services of said signature
  • Ley N°19.223/1993 - Law on criminal figures related to computing
  • Ley N°20.478/2010 - Law on recovery and continuity of critical and emergency conditions of the public telecommunications system

2. Anticipated changes to local laws

On October 2018, a bill was introduced to the Senate to strengthen the cybercrime law, thus adapting the current regulation to the Budapest Convention standards. One of the amendments proposed in the bill is the inclusion of any cybercrime as a cause for a legal entity criminal liability under law No. 20,393. 

Thereby, if the amendment is approved, legal entities must prevent any cybercrimes from being carried out by their owners, controllers, executives, representatives or managers. The failure to maintain reasonable preventive measures shall cause the legal entity to be subject to criminal liability and therefore the following sanctions:

  • Fines from UTM 400 (an indexed unit of account) to UTM 300,000;
  • Partial or total loss of benefits or absolute prohibition of receiving them for a specified period;
  • Temporary or permanent prohibition to execute contracts with the State of Chile; and
  • Dissolution of the legal entity.

This bill was approved by the Senate and now has moved to the second constitutional procedure. It is likely to be approved in 2021.

3. Application 

N/A

4. Authority

N/A

5. Key obligations 

N/A

6. Sanctions & non-compliance 

N/A

7. Is there a national computer emergency response team (CERT) or computer security incident response team (CSIRT)? 

The National Cybersecurity Centre (which is part of GCHQ) does not regulate the NIS Regulations but has a role in providing technical support and guidance by the following:

  • a Single Point of Contact (SPOC) – for engagement with EU partners, coordinating requests and submitting annual incident statistics;
  • a Computer Security Incident Response Team (CSIRT) to provide advice and support where reported incidents are identified or suspected of having a cybersecurity aspect;
  • being a Technical Authority on Cyber Security – to support OESs and CAs with advice and guidance, and to act as a source of technical expertise. For example, it provides:
    • a set of 14 NIS Security Principles for securing essential services;
    • a collection of supporting guidance for each principle;
    • a Cyber Assessment Framework (CAF) incorporating indicators of good practice; and implementation of guidance and support to CAs.

8. National cybersecurity incident management structure

Yes, see above.

9. Other cybersecurity initiatives 

No.

NA

Foto vonDiego Rodríguez
Diego Rodríguez, LL.M.
Partner
Santiago