/ Legal action against reclamos.cl sets a precedent against abusive use of personal data

An action for infringement of fundamental rights against reclamos.cl confirms the requirement of prior consent of individuals for the publication of their personal data on the web. It is an important precedent, in terms of personal data protection, against the abusive use that third parties may make of it.

Macarena Gatica L.
Partner
Alessandri Abogados

In 2018 Caja de Compensación de Asignación Familiar de Los Andes was contacted by www.reclamos.cl to offer the service of a complaints channel within this website. Caja de Compensación has various means to channel the requirements of its members, such as face-to-face service, telephone, digital, among others, so the offer was rejected. This did not satisfy reclamos.cl, who included on its website the personal data of the general manager of Caja de Compensación, as a contact channel for members to channel claims by sending emails to the general manager’s email address.

The e-mail address is a personal data according to Article 12 of Law 19,628 on Privacy Protection. Alessandri Abogados, on behalf of the general manager of Caja de Compensación, exercised the right of cancellation. However, reclamos.cl refused in writing to delete such data (cancel the data processing), after which the lawyers requested the Court of Appeals of Santiago to order the website reclamos.cl to stop processing the general manager’s personal data on its website. To this end, they claimed as affected the right to privacy and intimacy due to the abusive use of the publication of personal data on the Internet. Likewise, it was deemed necessary to protect the legal right, in accordance with Articles 19 No. 4 of the Constitution and 4 of Law 19,628 on Privacy Protection.

The Court of Santiago (Case No. 40465-2021) considered that the processing of personal data can only be carried out when this law or other legal provisions authorize it or the holder expressly consents to it, and citing that “privacy is lost when there is an intrusion that allows knowledge of reserved personal facts, or when there is a dissemination of those facts to outsiders or to an indiscriminate public”. Therefore, considering that the information published on the website treated the personal data of its holder without his authorization and without the existence of a legal rule authorizing it, it constitutes an arbitrary and illegal act.

The Court ordered the immediate cancellation of the publication and unanimously ratified the judgement in February 2023, which confirms the requirement of prior consent of individuals for the publication of their personal data on the web. This sets an important precedent in the protection of personal data against abusive use by third parties. This is the first action for infringement of fundamental rights (recurso de protección) in relation to the violation of data protection, in the face of unlawful processing and non-compliance with the rights of data holders, commonly known as ARCO rights (Access, Rectification, Cancellation and Opposition).

See judgment.

See report.