/ Consultative roundtables for Fintech Law implementation: consent in the open finance system

Maria Ignacia Ormeño Sarralde
Associate Attorney
Alessandri Abogados

During 2023, the Financial Market Commission (CMF) held several consultative roundtables, in which Alessandri Abogados participated, in order to discuss the content of the seventy general applicability rules that it must issue under the Fintech Law.

The session related to consent in the open finance system was particularly noteworthy. This session was dedicated to the discussion of a conceptual proposal drafted by the CMF that proposes regulatory guidelines on the way in which the express consent of clients that form part of this system will be considered granted for all legal purposes and the way in which this consent may be revoked. Likewise, the information that both Information Based Service Providers (IBSPs) and Payment Initiation Service Providers (PISPs) must provide to customers regarding requests for information or payment initiation executed in accordance with the corresponding authorizations was analyzed.

These guidelines are intended to cover what the Fintech Law itself entrusts to the CMF in Article 23, as well as areas of concern that have been expressed by international organizations and studies on consent.

The discussion mainly focused on the following matters:

• Possibility of the separation of the granting of consent with respect to any other form of manifestation of will.
• The need to establish a specific term for the validity of the consent.
• Establishing that whoever manages the consent must maintain a revocation channel on the same terms as those used to obtain consent.
• Requirement that the institutions must implement control panels so that the client can manage the consents granted in a simple, remote and free manner.
• Mandate for institutions to inform their clients, on an annual basis, of each of the consents that were granted, revoked or expired during the period; those that are still in force; and the use or processing given to their data.
• Ways to facilitate the outsourcing of some services.

The discussion will be subject to the General Applicability Rule that the CMF will publish in consultation. However, we cannot fail to mention our concern regarding the excessive burden that the CMF intends to establish regarding the way in which consent must be granted, considering the various requirements and platforms that entities must have available to their clients for granting consent, which may become an impediment to achieving the spirit of the rule, i.e. financial inclusion, since the cost of implementing and complying with these requirements will ultimately be passed on to the end consumer.