/ Data protection, digital platforms and neuro-rights

25 January, 2022

Macarena Gatica L.
Alessandri Abogados


During the second semester of 2021, two bills related to innovation and technology were presented.  Although their regulation may seem laudable and even necessary, actually they do not fulfill the desired purpose.  Moreover, the protection sought exists in existing regulations and/or in the bill for the protection of personal data (Bill 11,144).

First, we make reference to the bill on digital platforms (Bill 14,561-19).  In general terms, it has significant shortcomings.  By containing vague, general definitions and new concepts without defined scope, the bill would violate fundamental principles such as freedom of expression and legal certainty.  Furthermore, it would be contrary to the obligations established in the Inter-American System of Human Rights, by creating obligations of monitoring and restriction of content for digital platforms, requiring private parties to perform tasks that correspond to the courts of justice.  Thus, aspects related to consent (standard-form agreements) and the rights of digital consumers are already regulated in Law 19,496 on consumer protection, not requiring a separate regulation because the service is provided through the Internet, not for this reason it is a different consumer or of special quality.  The same happens with the right to forget (right of cancellation), the consent for personal data processing and the right to automated valuations that it tries to regulate when they are already expressly enshrined in law 19,628 on the protection of private life and Bill 11,144 that modifies it.

The same happens with the bill on the protection of neuro-rights and mental integrity, and the development of research and neurotechnology (Bill 14,561-19).  The first article of this parliamentary initiative states that the purpose of this law is to protect the physical and mental integrity of persons, by protecting the privacy of neuronal data, the right to autonomy or freedom of individual decision, and access without arbitrary discrimination to those neurotechnology that entail an increase in psychic capacities.  Likewise, it states that neuronal data are sensitive data, alluding to Law 19,628.  Why then is it necessary to specifically regulate neuronal data?  Or the physical and psychological integrity of persons when these are already protected in the current legal system and in bills such as the one on data protection?  If we consider that neuronal data are personal data, they are protected in Article 19 No. 4 of the Constitution, in Law 19,628, in the recently published pro-consumer law and in Bill 11,144.

The only thing that explains the above is the delay, at this point inexplicable, that has suffered the processing of the bill on protection of personal data.  This has meant isolated regulations generating a lack of coherence in the legal system.

Check here the presentation of Macarena Gatica, before comisión futuro in relation to the bill on digital platforms.