/ Cookies and Sernac

September 5, 2019

In April and May of this year, the National Consumer Service (Sernac, Spanish acronym) conducted a survey of various e-commerce providers, reporting – among other figures – that of the companies that use cookies on their websites, 70% of them inform consumers of their use.

In this regard, Sernac has pronounced in relation to the use of cookies by suppliers in their digital platforms in relation to the protection of personal data and the rights of consumers.

Sernac making extensive use of its powers and invoking the right provided for in paragraph b) of article 3 of the Consumer Protection Act, in relation to “truthful and timely information on the goods and services offered”, and in relation to article 3 of the Privacy Protection Act, which governs “the collection of personal data through surveys, market studies or public opinion polls or other similar instruments”, has stated that every provider must previously inform the existence of data storage files while navigating, have the option of rejecting or accepting the use of such files, inform the purpose of data storage, and inform and have a mechanism of opposition to the use of data collected from consumers.

Although there is no express legal provision regulating the collection of data by cookies, we understand that since they can collect personal data, should be considered within the scope of application of Law 19,628 on privacy protection. We can understand the role of Sernac in terms of spam or unwanted mail embodied in article 28 B of the Consumer Protection Act and the Registry Do Not Disturb, however, its pronouncement regarding the use of cookies, can be considered as an overstepping of its supervision authority, since the protected object, personal data, is not that of the Consumer Protection Act. It should be noted that previous e-commerce studies conducted by Sernac, focused on the penetration of this sales channel and the sources of complaints, but not on privacy issues.

Beyond the legal regulation of cookies, it is important to bear in mind the extent with which Sernac is monitoring, so we recommend that you consider an evaluation of the treatment of personal data in sale, after-sale and consumer service processes and, particularly with respect to cookies, the recommendation is to inform visitors to a website about the use of cookies, as well as have a privacy policy governing the personal data treatment of said visitors. All this, in line with the principles of transparency and information, contemplated in the bill on Personal Data Protection, which also establishes the Data Protection Agency.

Jaime Urzúa
Associate – Alessandri Abogados