CMS Expert Guide: Data Law Navigator

Data protection

1. Local data protection laws and scope

The main data protection legislation is the Federal Law on the Protection of Personal Data held by Private Parties (the “Data Protection Law”) and its supplementary regulation (the “Data Protection Regulations”), together the “Data Protection Legislation”. The Data Protection Law came into force in July 2010 and the Data Protection Regulation came into force in December 2011. Other relevant legislation containing data protection provisions includes:

  • Articles 6 to 16 of the Mexican Constitution;
  • The Privacy Notice Guidelines, which govern the content of data privacy notices and obtaining consent for processing personal data;
  • The General Law for the Protection of Personal Data in Possession of Obligated Subjects governs personal data held by public bodies; and
  • The Federal Consumer Protection Law governs certain aspects concerning marketing activities.    

Additionally, Mexico is a signatory of international agreements on Data Protection, like the Convention for the Protection of the People Regarding the Automated Treatment of Personal Information. Mexico is also a member or the Inter American Network of Data Protection.

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.

In Ukraine, the main legal act that governs processing (collection, use, storage, etc) of personal data is the Law of Ukraine on Personal Data Protection No 2297-VI dated 1 June 2010 (“PDP Law”).

Link to the PDP Law in Ukrainian and to the unofficial English translation.

The PDP Law regulates processing of personal data, which is broadly defined as any action or a combination of actions with personal data, including collection, storage, usage, transfer etc.

In terms of the jurisdictional scope of application, the PDP Law does not explicitly specify it. However, it may be interpreted to apply to all personal data processed in the territory of Ukraine (irrespective of whether it is processed by a foreign or a Ukrainian entity) as well to data transfers from Ukraine.

Other legislation includes:

  • Guidelines on Processing of Personal Data adopted by the Order of Ukrainian Parliament Commissioner for Human Rights No 1/02-14, dated 8 January 2014;
  • Guidelines on the Execution of Control by Ukrainian Parliament Commissioner for Human Rights over Adherence to Personal Data Protection Legislation adopted by the Order of Ukrainian Parliament Commissioner for Human Rights No 1/02-14, dated 8 January 2014;
  • Guidelines on Notifying the Ukrainian Parliament Commissioner for Human Rights regarding the Processing of High-Risk Personal Data, a Department or a Person Responsible for Organizing Work related to Personal Data Protection in connection with its Processing, and Publishing of Such Data adopted by the Order of Ukrainian Parliament Commissioner for Human Rights No 1/02-14, dated 8 January 2014.  

2. Data protection authority

The Federal Institute for Access to Information and Data Protection (Instituto Nacional de Acceso a la Información y Protección de Datos Personales or "INAI"), is responsible for overseeing the Data Protection Legislation. Its aim is to encourage access to all public information about governmental activities, and budgets, as well as seeking the protection of personal data and the right to privacy.
The INAI, if requested by a data subject, may carry out an investigation to ensure compliance with the Data Protection Legislation of a specific undertaking and sanction those found to be in breach the Data Protection Legislation.

Chile does not have a Data Protection Authority.

The Ukrainian Parliament Commissioner for Human Rights  (Уповноважений Верховної Ради України з прав людини) (“Ombudsman”): https://www.ombudsman.gov.ua/en/page/zpd/

3. Anticipated changes to local laws

There are no anticipated changes. Notwithstanding, the President of Mexico suggested in January that the INAI would be replaced by a State-controlled body. No additional details or timelines have been provided.

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.

The changes to the personal data protection legislation may be introduced as part of aligning national personal data protection legislation with the GDPR standards. In October 2017, the EU-Ukraine Association Agreement Implementation Plan was adopted including the steps for aligning national personal data protection legislation with the GDPR. The Ombudsman is currently in the process of developing the respective draft laws.

It is also constantly being amended in relation to measures necessary to combat the coronavirus (COVID-19) pandemic. These include allowing processing of certain types of high-risk data for the stated purposes without a data subject’s consent. This relates exclusively to specific entities that are appointed by the government to carry out certain functions in the respective sphere (i.e. the entity managing the mobile application for tracking people who are in quarantine).

4. Sanctions & non-compliance

The INAI has the has the authority to impose the following administrative fines:

  • 100 to 160,000 units of measure 1 1 unit of measure = MXN 86.88 (Mexican Pesos)  for:
    • Acting negligently or fraudulently in processing and responding to requests for personal data access, rectification, cancellation or objection;
    • Fraudulently declaring the inexistence of personal data where such exists in whole or in part in the databases of the Data Controller;
    • Processing personal data in violation of the principles established in the Data Protection Law;
    • Omitting from the Privacy Notice any or all of the information it requires;
    • Maintaining inaccurate personal data when such action is attributable to the Data Controller, or failing to perform legally due rectifications or cancellations where the data subject’s rights are affected; and
    • Failure to comply with the notice warnings issued by the INAI.
  • 200 to 320,000 units of measure 2 1 unit of measure = MXN 86.88 (Mexican Pesos) for:
    • Breaching the duty of confidentiality set out in the Data Protection Law;
    • Materially changing the original data processing purpose in contravention of the Data Protection Law;
    • Transferring data to third parties without providing them with the Privacy Notice containing the limitations to which the data subject has conditioned data disclosure;
    • Compromising the security of databases, sites, programmes or equipment;
    • Carrying out the transfer or assignment of personal data outside of the cases where it is permitted under the Data Protection Law;
    • Collecting or transferring personal data without the express consent of the data subject where required;
    • Obstructing verification actions of the INAI;
    • Collecting data in a deceptive and fraudulent manner;
    • Continuing with the illegitimate use of personal data when the INAI or the data subjects have requested such use be ended;
    • Processing personal data in a way that affects or impedes the exercise of the rights of access, rectification, cancellation and objection set;
    • Creating special data databases in violation of the Data Protection Law.   

In the event that the infractions mentioned in the preceding paragraphs persist, an additional fine of 100 to 320,000 units of measure 3 1 unit of measure = MXN 86.88 (Mexican Pesos)  can be imposed.

Sanctions may be doubled for any of the above infractions committed in the treatment of sensitive data.

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.

Administrative sanctions:
  • Failure to notify or late notification of the Ombudsman in respect of processing of high-risk data, or amendments to such data (fine of up to UAH 34,000 (ca. EUR 1,000));
  • Failure to execute actions as lawfully requested by the Ombudsman necessary to prevent or eliminate a breach of the personal data legislation (fine of up to UAH 34,000 (ca. EUR 1,000));
  • Non-compliance with the personal data legislation resulting in unauthorised access to personal data (fine of up to UAH 34,000 (ca. EUR 1,000).
Criminal sanctions:
  • Illegal collection of personal data; or storage or dissemination of personal data (imprisonment for up to five years).
Others: 
  • A data subject may also seek compensation in court for civil damages caused by a breach of personal data protection rules.

In practice, the Ombudsman first issues a warning to an offender with a request to cease the breach of personal data protection rules. An administrative fine may then be imposed if the offender does not comply with the warning. Criminal liability may be imposed only for extremely serious data protection-related offences (we are not aware of any such precedent).

5. Registration / notification / authorisation

The Data Protection Legislation does not require prior notification or registration for any data processing activities.

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

The PDP Law does not require notification or registration before processing personal data.

Data controllers or processors processing high-risk data, however, must notify the Ombudsman within 30 days of commencement of processing of this data.

6. Main obligations and processing requirements

The Data Protection Law recognises two parties who deal with personal data:

  1. Data Processors: the subject or legal entity that processes personal data on behalf of the Data Controller.
  2. Data Controller: the subject or legal entity that decides on the processing of personal data.

Their relationship must be established through contractual clauses or other legal instruments in a way that proves the existence, scope and nature of such relationship.

According to the Data Protection Legislation, the principles that must be observed by controllers and/or processors in the processing of personal data are the following:

  1. Legitimacy: Personal data must be collected and processed in a lawful manner;
  2. Consent: The data subject must give its consent for the processing of its personal data;
  3. Information: Through a Privacy Notice, the Data Controller must inform the data subject about the existence and the characteristics of their personal data processing;
  4. Quality: This principle is given when the personal data is provided directly by the data subject; if not, the Data Controller must take the measurements to meet the quality principle and adopt mechanisms that are considered necessary to ensure that the data is accurate, complete, updated and correct;
  5. Purpose: Personal data can only be processed for the purposes established in the Privacy Note.
  6. Loyalty: Personal data must be processed safeguarding the protection of the data subjects’ interests and the reasonable expectation of privacy;
  7. Responsibility: Data Controllers must ensure the processing of personal data in their custody, as well as the data transferred to a Data Processor.

Additionally, the following legal requirements should be taken into account when processing personal data:

  1. Personal data must be collected and processed in a lawful manner in accordance with the provisions established by the Data Protection Legislation and other applicable regulations;
  2. Personal data must not be obtained through deceptive or fraudulent means;
  3. In all processing of personal data, it is presumed that there is a reasonable expectation of privacy, understood as the trust any one person places in another for personal data provided to be treated pursuant to any agreement of the parties in the terms established by the Law;
  4. Personal data should not be kept for any longer than is necessary in order to comply with the purposes for which the personal data was originally held. Data Controllers must establish and document retention procedures, including deletion and/or blocking of personal data, taking the nature of the data into account.   

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.

Data controllers must comply with the following obligations:

  • Personal data must be processed openly and transparently;
  • The means of processing personal data must correspond to the purpose of the processing;
  • Personal data must be protected from accidental loss, destruction, or unauthorised processing and access.

The PDP Law also sets out certain requirements for securing protection measures during the processing of data.

7. Data subject rights

All data subjects are entitled to exercise rights of access, rectification, cancellation and objection regarding their personal data (collectively known as ARCO rights). These rights are not mutually exclusive.

Right of Access

The data subject is entitled to access its personal data held by the Data Controller, as well as information regarding the conditions and generalities of the processing.

Right of Rectification

Data subjects may request, at any time, that Data Controllers rectify personal data if it is inaccurate or incomplete.

Right of Cancellation

Data subjects have the right to cancel (i.e. seek erasure of) its personal data. There are certain situations where Data Controllers have the right to object to such erasure (e.g. if required by applicable law or public interest).

Right of Objection

Data Subjects may, at any time, oppose the processing of their personal data for legitimate purposes.

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.

The PDP Law grants data subjects a broad scope of rights, including the right to:

  • Submit an objection to the processing of their personal data;
  • Access their own personal data;
  • Define certain restrictions and reservations with respect to any element of their data’s processing;
  • Submit a justified request to rectify or delete personal data by any data controller or processor, if the data is processed illegally or is inaccurate in any respect;
  • Obtain information on the terms of third parties' access to their personal data, including information about third parties to whom their personal data are transferred;
  • Revoke consent to data processing.

8. Processing by third parties

According to the Data Protection Law, if the Data Controllers intend to transfer personal data to third parties, it must provide them with a Privacy Notice and the purposes to which the data subject has limited data processing. The data subject must consent to such transfer via the Privacy Notice.

Subcontracting

Data Processors must obtain permission from Data Controllers if subcontracting may involve the subcontractor processing personal data. Once consent is obtained, the Data Processor must enter into a contract with the subcontractor.

The subcontractor will assume the same obligations required for Data Processors under the Data Protection Legislation and other applicable law.

The Data Processor’s right to subcontract processing activities should be outlined in the contract between the Data Controller and Data Processor. If this right is not covered in that contract, the Data Processor must seek specific consent from the Data Controller in order to subcontract processing activities.

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.

Access to personal data (and thus, further processing) by a third party shall only be granted under the terms of the consent by the personal data subject and only provided that such third party agrees to comply with the PDP Law and is in fact capable to ensure such compliance. 

9. Transfers out of country

International transfers of personal data must be consented to by the data subject and the purposes of such transfers must be included in the Privacy Notice. Such consent is not required where the transfer is:

  1. pursuant to a Law or Treaty to which Mexico is party;
  2. necessary for medical diagnosis or prevention, healthcare delivery, medical treatment or health services management;
  3. made to holding companies, subsidiaries or affiliates under common control of the Data Controller, or to a parent company or any company of the same group as the Data Controller, operating under the same internal processes and policies;
  4. necessary by virtue of a contract executed or to be executed in the interest of the data subject between the Data Controller and a third party;
  5. necessary or legally required to safeguard public interest or for the administration of justice;
  6. necessary for the recognition, exercise or defence of a right in a judicial proceeding; or
  7. necessary to maintain or fulfil a legal relationship between the Data Controller and the data subject.

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)

Personal data may be transferred only to countries that provide an adequate level of personal data protection.

It is assumed that the following countries provide such level of protection:

  • European Economic Area (EEA) member states;
  • Countries ratifying the Strasbourg Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data 1981 (Strasbourg Data Processing Convention).

Additionally, cross-border personal data transfers are only possible if one of the following conditions is satisfied:

  • The data subject grants express consent to the transfer;
  • The data controller and the data subject need to enter into or perform an agreement for the benefit of the data subject;
  • The data transfer is necessary to protect the vital interests of the relevant data subject;
  • The data transfer is necessary to protect the public interest or pursue legal remedies;
  • The data controller has provided relevant guarantees to protect the data subject's privacy.   

Intra-group cross-border transfers of personal data between different legal entities belonging to the same corporate group are subject to these rules.

10. Data Protection Officer

Data Controllers must appoint a Data Protection Officer (or equivalent role) to deal with data subjects’ requests and promote data protection compliance within the Data Controller’s organisation.

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

The processing of high-risk data requires prior appointment of a data protection officer. There are no requirements regarding qualifications or skills of this person, and the PDP Law contains several functions, which are to be performed by the officer.

11. Security

Data Controllers and Data Processors are required to establish and maintain administrative and physical, security and, if applicable, technical measures for the protection of personal data.

In developing security measures, the data controller should take at least the following into account:

  1. the inherent risk given the type of personal data;
  2. the sensitivity of the personal data;
  3. technological developments;
  4. the potential consequences of a breach for data subjects;
  5. the number of data subjects;
  6. prior vulnerabilities in the processing systems;
  7. value of the data for an unauthorised third party; and
  8. other factors that may impact the level of risk or that result from other applicable laws and regulations.

The Data Protection Regulation also sets out actions that Data Controllers can take in order to comply with the security requirements:

  1. prepare an inventory of personal data;
  2. determine the functions and obligations of the person(s) who will process personal data;
  3. conduct a risk analysis of personal data consisting of identifying dangers and estimating the risks;
  4. establish the necessary security measures;
  5. identify gaps between existing security measures and those required for each type of data and each processing system;
  6. prepare a work plan based on the gap analysis in (v) above;
  7. carry out revisions and/or audits;
  8. train personnel who process personal data; and
  9. keep a record of the methods of processing personal data.

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.

All participants of data processing relationships, including data controllers and data processors, must ensure that certain personal data are protected from:

  • Accidental loss;
  • Destruction;
  • Unauthorised processing and access.

The PDP Law also sets out certain requirements with respect to use of personal data by data controller’s employees, including use of data only in light of and to the extent provided by their professional duties, prohibition of disclosure of any personal data (save for the cases provided by law), etc. Those data controllers, which process high-risk data, must appoint data protection officers.

12. Breach notification

There are no requirements for Data Controllers to notify the INAI in the event of a data breach (other than Data Controllers which are government entities). However, Data Controllers must notify data subjects if their personal data is subject to a breach with at least the following information:

  1. nature of the breach;
  2. the personal data compromised;
  3. recommendations of actions that may be taken by the data subject to protect its interests;
  4. immediate measures being taken by the data controller; and
  5. any means by which the individual can find further information regarding the matter.

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

The PDP Law does not require notification of personal data security breaches, but data subjects should be informed about any amendment, deletion, or destruction of their personal data within ten business days.

13. Direct marketing

Personal data can be processed for advertising and marketing purposes in accordance with the Data Protection Legislation, provided that these purposes are made clear in the Privacy Notice and in any other medium required for communicating the processing purposes.

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.

Under the general rule provided by the Law of Ukraine on Electronic Commerce, commercial electronic communication may be sent to a recipient only provided such a recipient provided his/her consent to the receipt of such communication. The exemption from this rule states that commercial electronic communication may be sent with no consent of a recipient only provided that the recipient may unsubscribe from such notifications. 

14. Cookies and adtech

When the Data Controller uses remote or local mechanisms for electronic, optical or other forms of technological communication which allow collection of personal data automatically and simultaneously to the time the data subject has contact with such communications mechanisms, the data subject must be informed about the use of these technologies, at the time the data subject makes contact with the technology and must be informed of the obtention of personal data as well as the way in which the cookies can be disabled.

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

Data controllers may place cookies or similar technologies on data subjects' computers with their prior consent. The consent may be provided in an electronic form if the user is provided with the opportunity to read the privacy policy before providing electronic consent.

15. Risk scale

Moderate

Low

Moderate

Cybersecurity

1. Local cybersecurity laws and scope

There is currently no specific federal cybersecurity law in force in Mexico.

Cybersecurity is regulated in the Federal Criminal Code, the Data Protection Legislation and other sector-specific legislation applicable to entities operating within those sectors (e.g. the Fintech Law). Specific cybersecurity measures are normally regulated through tertiary regulatory instruments such as manuals, official operating parameters and guides.

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
  • The Law of Ukraine No 2163-VIII of 5 October 2017 on the Basic Principles of Cybersecurity of Ukraine (Cybersecurity Law)
  • The Decree of the President of Ukraine No 96/2016 of 15 March 2016 “On the Cyber Security Strategy of Ukraine” (Cybersecurity Strategy)
  • The Resolution of the Cabinet of Ministers of Ukraine No 518 of 19 June 2019 “On the Adoption of the General Requirements to the Cybersecurity of the Critical Infrastructure Objects” (Cybersecurity Requirements Resolution)
  • The Resolution of the Cabinet of Ministers of Ukraine No 943 of 9 October 2020 “On Certain Questions of the Critical Infrastructure Objects” (Critical Infrastructure Resolution)

2. Anticipated changes to local laws

A National Cybersecurity Strategy document was published in 2017, but since the change in government in December 2018, there has not been much progress in terms of actual regulation.

In February 2020, a Mexican Senator submitted a bill proposing amendments to the Data Protection Law (the “DP Bill”).

The DP Bill proposed implementing best practices with respect to cybersecurity but made no specific recommendations.

There have been no developments regarding the DP Bill since it was announced in February 2020.

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.

The list of the critical infrastructure objects and the respective register are yet to be established.

3. Application 

There is no indication of when (or if) the DP Bill will be passed into law or if the National Cybersecurity Strategy will be progressed.

N/A

  • Cybersecurity Law: affects companies and institutions listed as ‘critical infrastructure’, which is defined rather broadly and may potentially apply to any company active in certain sectors of economy, like chemicals, energy, transport, etc., and, which are included into a special register. However, the mentioned register has not been launched yet. 
  • Cybersecurity Strategy: sets out actions aimed at increasing overall cyber security to efficiently tackle and combat cyber crimes and threats, involving propaganda, espionage and cyber-attacks
  • Cybersecurity Requirements Resolution: sets out cybersecurity requirements to the critical infrastructure objects.
  • Critical Infrastructure Resolution: sets out the criteria for the formation of the list of critical infrastructure objects of Ukraine.

4. Authority

The primary authority in charge of responding to any issue regarding cybersecurity is the National Guard (previously Federal Police, now formally though not materially fully integrated into the National Guard) and the Ministry of Public Security. Additional to this, there are other local authorities in some regions, such as the Police for the Prevention of Cybercrimes in Mexico City.

The INAI is responsible for overseeing data security breaches in general.

There are other authorities that could have jurisdiction regarding sector-specific cybersecurity breaches e.g. the Mexican Securities and Exchange Commission or Mexico’s Central Bank in case of cybersecurity breaches in the banking and financial sector. 

N/A

5. Key obligations 

Given there is no legislation specifically regulating cybersecurity, companies operating in sectors that do not have their own cybersecurity requirements are not subject to any particular obligations. Similarly, there is no obligation to report cyber incidents to the authorities. However, gaining access or trying to access a protected system is considered a crime in Mexico and therefore the offended party has the capacity to report the crime to Federal Prosecutors. 

With respect to personal data, under the Data Protection Legislation, every organisation must implement corrective and preventive measures to improve security and avoid the violation personal data rights.

N/A

Major obligations of the above authorities are:

  • Implementation of a public policy concerning cybersecurity in Ukraine.
  • Prevention of cyberthreats and cybercrimes.
  • Reporting of cybersecurity incidents.

6. Sanctions & non-compliance 

Even though there is no definition of “cybercrime”, the Federal Criminal Code sanctions some behaviours that can be identified as cybercrimes, such as hacking, phishing, infections of IT systems with malware, identity theft or fraud. These illegal behaviours can be punished with prison sentences and a range of fines, depending on the severity of the crime. 

N/A

Major offences concerning cybersecurity are envisaged by Articles 360-363 of the Criminal Code of Ukraine, including creation and distribution of harmful software, unauthorised actions with information, etc. The sanctions for such offences may include a fine, custodial restraint, or imprisonment.

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

The authority responsible for the prevention and response of any cybersecurity issue is the National Response Centre for Cyber Incidents of the Federal Police (now formally incorporated to the National Guard) or CERT-MX. This body is in charge of preventing and mitigating any threat to technological infrastructure and operability in Mexico. Additionally, the INAI is responsible for supervising compliance with legislation regarding personal data protection.

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.

Yes. The Computer Emergency Response Team (CERT) of Ukraine, a special subdivision of the State Service of Special Communications and Information Protection of Ukraine provides the protection for state telecommunication systems and reacts on the computer security incidents in Ukraine.

8. National cybersecurity incident management structure

The CERT-MX is responsible for dealing with any cybersecurity incidents, but only after a specific request, complaint or demand is submitted. The INAI can also initiate investigations regarding the protection of personal data.

Yes, see above.

Cybersecurity Strategy provides the general response structure for handling cybersecurity crises and incidents.

9. Other cybersecurity initiatives 

In the private sector, the Mexican Association for Cybersecurity offers services and products regarding cybersecurity and data protection. It also encourages the protection of information and proper information handling. 

No.

N/A

Portrait of Héctor González Martínez
Héctor González Martínez
Senior Associate
Mexico City
Portrait of Diego Rodríguez
Diego Rodríguez, LL.M.
Partner
Santiago
Portrait of Maria Orlyk
Maria Orlyk
Managing Partner Kyiv
Kyiv (CMS RRH)
Portrait of Mykola Heletiy
Mykola Heletiy
Senior Associate
Kyiv (CMS CMNO)
Portrait of Diana Valyeyeva
Diana Valyeyeva
Associate
Kyiv (CMS RRH)