Actualidad Chile

Personal data protection as a constitutional right

Bill to modify article 19.3 of the constitution

On May 15, 2018, the Chilean Senate adopted the amendment of article 19.4 of the Constitution to make the right to personal data protection a constitutional right. This article addresses protecting the private life and honour of persons and their family, and has been amended by including the protection of personal data. The precept refers to the implementing secondary legislation of this right, which is currently included in the 1999 law nº19.628 on the protection of a person’s private life.

Chile is a member of the Ibero-American Network of Data Protection and it hosted the XV Ibero-American Data Protection Meeting in Santiago de Chile on 22nd June 2017, which highlighted the founding principle of the Network: the right to the protection of personal data as a fundamental right of all people, irrespective of nationality, jurisdiction or territory.

Chile is currently debating a Personal Data Protection Bill that will amend the current law on protecting private life, in which one of the novel provisions for Chile is the creation of a Data Protection Agency to ensure the protection of the rights and freedoms of the holders of the data and proper compliance with the regulations. The future agency will have the powers to regulate, supervise, audit and ultimately, to sanction failure to comply. Hence, Chile joins other countries of the region who already have a data protection authority, such as Argentina, Colombia, Mexico, Peru and  Uruguay.

The existence of a protection agency is one of the elements that the European Commission takes into account when considering whether a jurisdiction outside the European Union has a protection regime equivalent to the European Data Protection Regulation (in effect from May 25, 2018) or not. The consequence of this is the legality of the international transfer of data between these countries without the need for prior authorisation from the control authorities.