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.

  • Act No. 110/2019 Coll., on processing of personal data (hereinafter the “Data Processing Act”)
  • Act No. 480/2004 Coll., on certain Information Society Services
  • Act No. 127/2005 Coll., on Electronic Communications
  • Act No. 40/1995 Coll., on Regulation of Advertisement

The Data Processing Act implements GDPR and the Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.

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.

The Office for Personal Data Protection: https://www.uoou.cz/en

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.

There are no anticipated changes to local laws.

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.

Administrative sanctions:

A fine of up to CZK 5m may be imposed for violation of prohibition of disclosure of personal data laid down in other legal regulations.

A fine of up to CZK 10m may be imposed for violation of obligations set out in the Data Processing Act regarding processing for purposes of prevention or detection of criminal offence, proceedings of criminal offenses, enforcement of penalties, ensuring the security of the Czech Republic or ensuring public policy and security.

Criminal sanctions:

A punishment of a prison sentence up to eight years, monetary penalty or punishment by disqualification may be imposed for processing or appropriating personal data that was collected on another person in connection with the execution of public authority without authorisation, and thus causing serious harm to the rights or legitimate interests of the person whom the personal data concerns.

Similar punishment may be imposed for violation of the State imposed or recognised obligation of confidentiality by the same action as above in connection with the execution of their employment, profession, or function without authorisation, and thus causing serious harm to the rights or legitimate interests of the person whom the personal data concerns.

Others: 

Individual damages may be claimed pursuant to general obligations to compensate for damage caused by infringement of statutory or contractual obligations.

5. Registration / notification / authorisation

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

The Register of Data Controllers maintained by the Data Protection Office has been closed since the GDPR became effective, so authorisations, registrations or notifications to the Data Protection Office are no longer required.

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.   

Articles 12 to 22 and, to their extent, Article 5 of the GDPR shall apply similarly, or fulfilment of obligations of data controllers or processors or exercise of rights of data subject shall be delayed, if it is necessary and proportionate to ensuring protection of protected interests such as defence or security interests of the Czech Republic, prevention, investigation, detection and prosecution of breaches of ethics for regulated professions, the protection of the rights and freedoms of persons, and the enforcement of private legal claims.

If a controller or processor limits the rights or obligations pursuant to the previous paragraph, he or she must report such fact to the Data Protection Office.

Otherwise there are no derogations from the GDPR.

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.

Please see above in “Main obligations and processing requirements” and below in “Breach notification”. 

Otherwise there are no derogations from the GDPR.

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.

There are no derogations from the GDPR.

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.

There are no derogations from the GDPR.

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.

Public authorities and bodies established by law which carry out statutory tasks in the public interest are obliged to appoint a Data Protection Officer. 

Otherwise There are no derogations from the GDPR.

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 derogations from the GDPR.

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.

If the data controller is obliged to report a breach to the data subject, it may report the breach in limited scope or may delay the report, if it is necessary and proportionate to ensuring protection of protected interests such as defence or security interests of the Czech Republic, prevention, investigation, detection and prosecution of breaches of ethics for regulated professions, the protection of the rights and freedoms of persons, the enforcement of private legal claims.

Otherwise there are no derogations from the GDPR.

Czech Data Protection Authority has published a form for data breach notifications available in Czech at: https://www.uoou.cz/assets/File.ashx?id_org=200144&id_dokumenty=46004

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.

  • By e-mail, SMS or other electronic messages: need to obtain consent, unless the controller can rely on the soft opt-in exemption – existing customers, marketing own similar products or services, and opt-out at the time of collection and afterwards, in every marketing communication (regulated by Act No. 480/2004 Coll., on certain Information Society Services).
  • By regular (postal) mail: opt-out regime – under Act No. 40/1995 Coll., on Regulation of Advertisement, anyone can use a sign “no commercial communication” or similar on their post box and the delivery of any such communication is then forbidden

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 EU cookies directive has been incorrectly implemented by the Act on electronic communication, and an opt-out regime applies in the Czech Republic. User consent is not required before cookies are downloaded to users’ computers. The website provider must only inform the user about the scope and purpose of the processing of data obtained by the cookies and give the user the option to decline such processing. In practice, the opt-out means that the user chooses to stop browsing on the website and leave it.

There is no specific regulation relating to adtech.

15. Risk scale

Moderate

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.

  • Act No. 181/2014 Coll., on cybersecurity and on changes of relating acts (“Cybersecurity Act”)
  • Decree No. 316/2014 Coll., on security measures, cybersecurity incidents, reactive measures, and on requirements on reporting in cybersecurity area (“Decree on Cybersecurity”)

The Cybersecurity Act implements the Directive (EU) 2016/1148 of the European Parliament and Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union.

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.

There are no anticipated changes at the national level.

However, the Commission of the European Union has adopted a proposal for a revised Directive on Security of Network and Information Systems (NIS 2 Directive) and once the final directive is issued, it will be implemented in the Czech Republic.

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.

The Cybersecurity Act sets out security obligations for:

  • Electronic communication service providers and operators of electronic communication networks;
  • Public authorities or subjects operating important networks – i.e. electronic communication networks which provide direct foreign connections to public communication networks or direct connection to critical infrastructure;
  • Controllers and operators of information and communication systems of critical infrastructure – i.e. an element or set of elements of critical infrastructure in communication and information systems in cybersecurity;
  • Controllers and operators of important information systems – i.e. information systems maintained by public authorities not categorised as critical infrastructure or information services for essential services, but where a security breach can restrict or significantly impede the exercise of power by public authorities;
  • Controllers and operators of information services for essential services – i.e. services that depend on electronic communication networks or information systems and where a security breach could have a significant impact on securing social or economic activities in sectors such as energy, transport, banking, financial markets infrastructure, healthcare, water resource management, digital infrastructure and chemicals;
  • Providers of essential services;
  • Providers of digital services.

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. 

National Cyber and Information Security Agency (NCISA)

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.

General obligations to:

  • Implement and enforce necessary and appropriate security measures;
  • Detect and report cybersecurity incidents. 

Some of the persons subject to the Cybersecurity Act – especially in critical infrastructure and information systems – are further obliged to:

  • Adopt a written cybersecurity plan;
  • Appoint a cybersecurity manager, architect of cybersecurity, cybersecurity auditor, etc.;
  • Conduct an annual cybersecurity audit.

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. 

Administrative sanctions:

A fine of up to CZK 5m may be imposed for violation of obligations under the cybersecurity regulation.

Criminal sanctions:

There are no specific criminal offences for non-compliance with cybersecurity regulation.

Others: 

It is generally possible that a claim for damages (and/or other remedies) is raised for the compensation of harm caused by violation of the cybersecurity obligations.

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.

Yes:

  • The NCISA also operates as governmental CERT.
  • The association CZ.NIC operates as national CERT/CSIRT.

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.

In 2016 the Czech government adopted the Unified Methodology for Handling Cybersecurity Incidents, which provides a 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. 

The NCISA closely cooperates with international corporations and provides additional services in cybersecurity, such as:

  • Sharing Data – subscription to BotnetFeed, IHAP & MDM and Shadowserver services,
  • Deployment of Honeypots,
  • Penetration testing, etc.
Portrait of Héctor González Martínez
Héctor González Martínez
Senior Associate
Mexico City
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Tomáš Matĕjovský
Partner
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Jakub Kabát
Associate
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Daniel Szpyrc
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