The law today

Technology

Supreme Court accepts appeal for protection and orders the removal of publications issued through social networks containing dishonorable expressions (“funas”).

On November 8, 2022, the Supreme Court (Rol N°49.936-2022) accepted the appeal for protection, revoking the appealed judgment, and ordered the elimination of the publications issued by the respondent containing expressions that dishonor the appellant, indicating that they constitute a disturbance to the right to one’ s own image and to their right to honor.

The protection action was filed due to various rude epithets and insults with which the respondent publicly denigrated the appellant, mainly violating the constitutional guarantee of article 19 N° 4 of the Political Constitution of the Republic, that is, the respect and protection of the private life and the honor of the person and his/her family.

The Court indicated that the facts imply a collision of constitutional guarantees, inasmuch as on the one hand it is argued that the right to honor is affected and on the other hand, it is affirmed that the broadcasting of the publications is part of the freedom of expression.

The Court considered that freedom of expression is not absolute, and that, if there is no possibility of counter-argument, as in the case of the publication, such offensive epithets are harmful to the honor of the person.

Consequently, the Court ordered the immediate removal of all publications issued by the respondent that contain dishonorable expressions regarding the appellant.

Should you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

Exempt Resolution No. 534 of 2022, which approves the interpretative circular of the Ministry of Economy, Development and Tourism on native advertising and influencers.

On June 16, 2022, the Ministry of Economy, Development and Tourism issued exempt resolution No. 534 of 2022, which approved the interpretative instruction of SERNAC incorporating the concepts of national advertising and “influencers”, determining their due regulation and applicable principles; and ensuring the implementation and compliance with good practices in these areas.

In the notice, the concept of national advertising was described as an advertising trend that consists of inserting advertising content in a communication media, in a non-invasive way, maintaining the format and editorial style of the media, managing to confuse the editorial content with advertising.

On the other hand, the term “influencers” was described as those advertising subjects that are part of native advertising and that, due to their degree of credibility in social networks and/or virtual platforms, influence their followers to carry out certain acts of consumption, in exchange for any type of benefit or compensation for the advertising carried out.
In addition, the Instruction determines certain parameters that the advertising agent must comply with, exercising its activity with rigorous care, respecting the regulations in force, especially the law on the protection of consumer rights.

Finally, good practices that must be followed are indicated, complying with certain standards such as the clear identification of the advertising content and the advertiser’s link, the clear exposition of the product’s characteristics, the honest and complete opinion about the product or service, the non-promotion of stereotypes, the verification of the veracity of the objective statements and the protection of the advertising content aimed at children and adolescents.

If you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

Decree No. 73 of 2022 of the Ministry of Justice and Human Rights is published, which approves the Regulation that establishes the form, characteristics and registration of public deeds granted through electronic means and notarization of electronic documents, according to the provisions of Article 497 of the Code of Civil Procedure, in accordance with the provisions of Article 409 bis of the Organic Code of Courts, incorporated by Law No. 21.394.

On September 14, 2022, Decree No. 73 of the Ministry of Justice and Human Rights was published in the Official Gazette, which approves the Regulation that establishes the form, characteristics and registration of public deeds granted through electronic means and the notarization of electronic documents, according to the provisions of Article 497 of the Code of Civil Procedure, in accordance with the provisions of Article 409 bis of the Organic Code of Courts, incorporated by Law No. 21.394.

In consideration of the entry into force of Law No. 21. 394, which modified Article 497 of the Code of Civil Procedure, in the sense of allowing the granting of the final deed of sale at public auction through an electronic document subscribed by means of an advanced electronic signature, and introduced Article 409 bis in the Organic Code of Courts, This regulation establishes a series of obligations and indications that notaries must follow with respect to the subscription of such electronic documents, as well as the formalities that they must have, among which it indicates:

– Compliance with the requirements of the first and second paragraphs of Article 404 of the Organic Code of Courts, plus the statements referred to in Article 405 of the same Code.
– They must be signed by the notary by means of an advanced electronic signature and electronic dating, in accordance with Law No. 19.799.
– They must form part of a protocol in accordance with the third paragraph of article 495 of the Code of Civil Procedure.
– Their duplicates or copies, which may only be granted by the authorizing notary, whoever subrogates or legally succeeds him or her, or the archivist in charge of the electronic protocol, must have an authenticity seal.
– Among others.

If you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

New law No. 21.459 on cybercrime is published in the Official Gazette.

On June 20, 2022, Law No. 21.459 was published in the Official Gazette, which establishes rules on computer crimes, repeals Law No. 19.223 and modifies other legal bodies in order to adapt them to the Budapest Convention.

For the purposes of this law, the following concepts are defined:

a) Computer data: Any representation of facts, information or concepts expressed in any form that lends itself to computer processing, including programs designed for a computer system to perform a function.
b) Computer system: Any isolated device or set of interconnected or interrelated devices the function of which, or that of any of its elements, is the automated processing of data in the execution of a program.
c) Service Providers: Any public or private entity that offers users of its services the possibility of communicating through a computer system and any other entity that processes or stores computer data for such communication service or for the users thereof.

This law repeals Law No. 19.223 of 1993, which criminalized computer-related offenses, and establishes new computer-related offenses. These new offenses are as follows:

1. Unlawful access: Whoever unduly intercepts, interrupts or interferes, by technical means, the non-public transmission of information in a computer system or between two or more of them, shall be punished with the penalty of minor imprisonment in its medium degree. Whoever, without due authorization, captures, by technical means, data contained in computer systems through electromagnetic emissions coming from them, shall be punished with the penalty of minor imprisonment in its medium to maximum degrees.
2. Unlawful interception: Whoever unduly intercepts, interrupts or interferes, by technical means, the non-public transmission of information in a computer system or between two or more of them, shall be punished with the penalty of minor imprisonment in its medium degree. Whoever, without due authorization, captures, by technical means, data contained in computer systems through electromagnetic emissions coming from them, shall be punished with the penalty of minor imprisonment in its medium to maximum degrees.
3. Attack to the integrity of computer data: Whoever unduly alters, damages or suppresses computer data, shall be punished with minor imprisonment in its medium degree, provided that this causes serious damage to the owner of such data.
4. Computer forgery: Whoever unduly introduces, alters, damages or suppresses computer data with the intention of being taken as authentic or used to generate authentic documents, shall be punished with minor imprisonment in its medium to maximum degrees. When the conduct described in the preceding paragraph is committed by a public employee, abusing his official position, he shall be punished with the penalty of minor imprisonment in its maximum degree to major imprisonment in its minimum degree.
5. Receipt of computer data: Whoever, knowing its origin or being unable but to know it, commercializes, transfers or stores with the same object or other illicit purpose, in any way, computer data coming from the conducts described in the previous crimes, shall suffer the penalty assigned to the respective crimes, reduced by one degree.
6. Computer fraud: Whoever, causing damage to another, with the purpose of obtaining an economic benefit for himself or for a third party, manipulates a computer system, through the introduction, alteration, damage or suppression of computer data or through any interference in the operation of a computer system shall be punished based on the value of the damage.
7. Abuse of devices: Whoever for the perpetration of certain crimes described in the law, delivers or obtains for its use, imports, disseminates or makes available in any other way one or more devices, computer programs, passwords, security or access codes or other similar data, created or adapted mainly for the perpetration of such crimes, shall be punished with the penalty of minimum imprisonment and a fine of five to ten monthly tax units.

A novelty of the law is that it regulates authorization and academic research, which will be lawful when access to a computer system for vulnerability research or to improve computer security involves the express authorization of the owner of the system. Therefore, any identification of vulnerability will necessarily require the express authorization of the owner of the computer system in order for such conduct not to constitute a crime.

The law establishes specific rules regarding the investigation and prosecution of these new crimes, as well as aggravating and mitigating factors for the criminal liability of those who commit them.

This law also implies the modification of different legal bodies, such as the Code of Criminal Procedure, Law No. 19,913, which creates the Financial Analysis Unit and modifies several provisions regarding money laundering and asset laundering, and Law No. 18,168, General Telecommunications Law.

Also, it is important to note that these offenses are incorporated into Law No. 20.393, which establishes the criminal liability of legal entities, so they must be evaluated in terms of compliance in order to prevent their commission.

Regarding the entry into force of the law, the amendments to the Code of Criminal Procedure will become effective six months after the publication in the Official Gazette of a regulation issued by the Ministry of Transportation and Telecommunications and signed by the Minister of the Interior and Public Safety. On the other hand, the amendments to Law No. 20,393 and No. 19,913 shall become effective six months after the publication of this law in the Official Gazette.

If you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

Up-to-date case law Supreme Court rules on attendance registration system that geolocates and obtains facial image of workers.

On April 28, 2022, the E. Supreme Court upheld the judgment issued by the Court of Appeals of Santiago, which dismissed the appeal for protection filed by a workers’ union, which sought to declare arbitrary the use of attendance registration systems of workers by means of geolocation and facial image capture. Specifically, the Court of Appeals points out the following:

1. The legal regulation of telecommuting and teleworking establishes that it is the responsibility of the employer, where appropriate, to implement at its own cost a reliable mechanism for recording the fulfillment of the working day remotely, in accordance with articles 33 and 152 quater J of the Labor Code.

2. In this regard, the Court of Appeals pointed out that the Labor Directorate, by means of Ordinary No. 1408 of April 8, 2020, carried out an analysis regarding the appropriateness of the use of mobile applications for time control and sending photographs to mark the daily workday.

3. The Court of Appeals agrees with the Labor Directorate with respect to the appropriateness of such marking system, to the extent that the parties have agreed in the employment contract or its annex and that the photograph is used only for the identification of the worker. In such circumstances, the obligation to take a photograph and, subsequently, send it through a communication network, in principle, would not violate the fundamental rights of workers.

4. Additionally, the Court of Appeals pointed out that the Labor Directorate, in the aforementioned Ordinary, indicated that “the photograph itself constitutes an electronic document, in accordance with the provisions of Article 2, letter d) of Law No. 19,799, on electronic documents, electronic signature and certification services of such signature, by means of which the workers could identify themselves in a system, as they would do with a password or their fingerprint. Having specified the foregoing, it should be pointed out that (…) if it is intended to be the means of identification for making markings in the attendance system, it would be in accordance with the law. On the contrary, if its purpose were another, for example, to determine work performance parameters, the photograph in question could not be part of a system specifically authorized for the control of attendance and working hours”.

5.  In view of the above arguments, the Court of Appeals resolves that there is no illegal or arbitrary conduct in the adoption of the system of registration and control of attendance adopted for workers subject to the modality of telecommuting or teleworking, as long as it has been so agreed in the respective employment contract or annex thereto and the limitations imposed by law and instructions of the Labor Directorate are observed by the employer.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl), Gonzalo Aravena (garavena@jdf.cl), Felipe Ovalle (fovalle@jdf.cl) and/or Jorge Tisné (jtisne@jdf.cl).

SERNAC issues circular on the terms and conditions of websites and the protection of personal data

The National Consumer Service (Sernac), after the public consultation held on February 9, 2022, published the “Interpretative Circular on fairness criteria in the stipulations contained in adhesion contracts referring to the collection and processing of consumers’ personal data”.

Sernac, making use of its power to administratively interpret the regulations contained in Law No. 19. 496 on Consumer Rights Protection (“LPDC”) and its new power contained in Article 15 bis of the LPDC law regarding consumers’ personal data in the framework of consumer relations, describes that suppliers usually incorporate clauses or provisions regarding the collection and processing of consumers’ personal data, either in the so-called “Terms and Conditions” or in the “Privacy Policies” that are generally published on the suppliers’ websites or online sales channels.

In this sense, he argues, such stipulations constitute adhesion contracts in the light of the LPDC, because they have been previously written by the supplier, leaving the consumer only the option to accept its content, but never to modify it.

Given the above, the purpose of this circular is to interpret the LPDC in relation to the contractual terms under which consumers authorize suppliers to collect and subsequently process their personal data, regulating in detail the following points:

1. Transparency of “privacy policies” and of any stipulation or condition linked to the processing of personal data;

2. Clauses that contemplate the modification, suspension or unilateral termination of the contractual relationship;

3. Clauses that charge the consumer for the effects of eventual deficiencies, omissions or errors;

4. Clauses containing absolute limitations of liability towards the consumer, and

5. Clauses that contravene contractual good faith.

Given the above, it is important that every seller or Marketplace adjusts its privacy policies and terms and conditions to this new circular, to avoid contingencies from the point of view of consumer protection and, in particular, linked to the way of collecting and processing personal data of users of web pages.

In case you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl)

Electronic Commerce Regulation enters into effect

On March 24, 2022, the Electronic Commerce Regulation, published in the Official Gazette on September 23, 2021, became effective.

The purpose of the Regulation is to strengthen the transparency and quality of the information provided to consumers in Electronic Commerce Platforms regarding the characteristics, essential features, price of the products and services offered, as well as any other relevant information to encourage informed decision making.

The Regulation is applicable to sellers that offer goods or services in Electronic Commerce Platforms in exchange for a price or fee, and to operators of Electronic Commerce Platforms (“Marketplace”) in which products or services of third-party sellers are offered.

In view of the above, the recommendation is that all suppliers and Marketplaces that offer goods or services on the Internet, adopt the necessary measures to adapt to the new obligations imposed by this Regulation.

JDF has a team specialized in e-commerce, which can support in updating the terms and conditions, privacy policies and, in general, with the flow of any digital platform, for proper compliance with this Regulation and all applicable regulations for each business.

In case you require additional information on this matter, you may contact: Jorge Tisné (jtisne@jdf.cl)

Chile publishes its National Artificial Intelligence Policy for the next 10

At the end of October 2021, the Ministry of Science, Knowledge, Technology and Innovation published Chile’s first National Artificial Intelligence Policy and Action Plan (“Policy”).

The Policy aims to insert Chile in the vanguard and global collaboration related to AI, with an ecosystem of research, development and innovation in AI that creates new capabilities in the productive, academic and state sectors, and that oriented according to cross-cutting principles of opportunity and responsibility, contribute to sustainable development and improve our quality of life.

The text contains four principles and is divided into three interdependent axes. Each axis addresses the opportunities and gaps in its field and introduces the objectives and priority actions that Chile must undertake in a time horizon of 10 years to meet the objective of this policy by 2031.

The principles of the Policy are: (i) AI with a focus on people’s well-being, respect for human rights and security; (ii) AI for sustainable development; (iii) inclusive AI; and (iv) globalized and evolving AI.

The 3 axes of the policy are:

Enabling Factors;
Development and adoption;
Ethics, regulatory aspects and socio-economic effects.

Within the enabling factors are described: (i) talent development; (ii) technological infrastructure; and (iii) data.

Within the development and adoption axis, the following are described: (i) generate indications of AI productivity for Chile; (ii) strengthen Chilean R&D in AI to achieve a level equal to or above the OECD average; (iii) promote collaboration between academia and the productive sector for R&D of AI systems; (iv) promote the development of the AI R&D ecosystem where the State, the productive sector and academia generate, are attentive and invest in opportunities related to AI; (v) Fostering and boosting the economic productivity of AI to reach levels equal to or higher than the average economic growth for OECD countries due to the impact of AI; (vi) Accelerating the modernization of the State through AI; and (vii) Adoption in key challenges: Mitigating and adapting to climate change with AI.

The last axis is structured based on: (i) ethics, (ii) impacts on work; (iii) consumer relations; (iv) creation, intellectual property and industrial property; (v) cybersecurity and cyber defense; and (vi) gender.

Should you require additional information on this matter, please contact: Jorge Tisné (jtisne@jdf.cl).

Law No. 21.377 modifies the Traffic Law and increases the penalty for the use of mobile phones or any other electronic or digital device while driving a motor vehicle.

On October 12, 2021, Law No. 21.377 was published in the Official Gazette amending the Traffic Law and increasing the penalty for the use of mobile phones or any other electronic or digital device while driving a motor vehicle.

The Law introduces a single article of the following tenor to the Traffic Law:

Article 199, N°:5.- “Driving a vehicle while manipulating a mobile telephone device or any other electronic or digital device, which is not incorporated in it from the factory, except if the action is carried out through a hands-free system, in accordance with the specifications determined by the regulation”.

It should be noted that article 199 lists very serious infractions or contraventions with respect to the Traffic Law.

The conducts classified as very serious infractions may be sanctioned with a fine of between 1.5 to 3 UTM, which may be doubled in case of recurrence within the last 3 years. Notwithstanding the above, a driver’s license suspension of between 5 to 45 days may be imposed and, in case of recurrence within the last 12 months, a suspension of between 45 and 90 days may be imposed.

In case of recurrence of very serious misconduct 3 or more times in the last 12 months, the judge may order the cancellation of the driver’s license of the offender.

Should you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

E-commerce regulations published

On September 23, 2021, the Electronic Commerce Regulation was published in the Official Gazette.

The purpose of the Regulation is to strengthen the transparency and quality of the information provided to consumers on e-commerce platforms regarding the characteristics, essential features, price of the products and services offered, as well as any other relevant information to encourage informed decision-making.

The Regulation is applicable to sellers that offer goods or services on e-commerce platforms in exchange for a price or fee, and to operators of e-commerce platforms (“Marketplace”) where products or services of third party sellers are offered.

Given the above, all suppliers and marketplaces that offer goods or services on the Internet must necessarily adapt to the new obligations imposed by this Regulation, which becomes effective 6 months after its publication in the Official Gazette.

JDF has a team specialized in e-commerce, which can support in updating the terms and conditions, privacy policies and, in general, with the flow of any digital platform, for proper compliance with this Regulation and all applicable regulations for each business.

Should you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

Spanish Data Protection Agency fines bank 6 million euros for infringement of the General Data Protection Regulation.

In an interesting resolution, dated January 13, 2021, the Spanish Data Protection Agency or AEPD fined the entity Caixabank S.A. (hereinafter CaixaBank) with 6 million euros for infringement of the General Data Protection Regulation (GDPR), in particular for accrediting the violation of Articles 6, 12, 13 and 14 of the above mentioned legal body (procedure No. PS/00477/2019).

Regarding the infringements detected by the AEPD in the contractual changes implemented by CaixaBank to adapt its privacy policies to the RGPD, the agency fined 2 million euros for minor infringements (in relation to the violation of the principle of transparency regarding the information to be provided to users) and 4 million euros for a serious infringement (given the imprecision regarding the bases of legitimacy of the processing and, also, because the presentation of consent did not comply with the applicable regulations).

The sanctioning procedure took place as a result of the fact that, in 2018, a bank user filed a complaint with the AEPD, claiming that CaixaBank imposed on him the obligation to accept the new conditions regarding the protection of personal data, and in particular, regarding the transfer of his personal data to all the companies of the entity’s group. Furthermore, it argued that in order to cancel this transfer, it had to send a letter to each of the companies in the group, which it reported as excessive.

Although this resolution is not applicable in Chile, and its legal basis is the RGPD, it is of interest to know it, because in our country there is a bill that seeks to increase the standards of protection of personal data to a level similar to the European (bulletin 11144-07); matter that is currently regulated in Law No. 19.628 of 1999, on the Protection of Private Life.

The resolution under discussion contains interesting legal grounds that may be useful when the bill is enacted. It is especially relevant with respect to valid consent, the bases of legitimacy or lawfulness of data processing and the application of fines.

Regarding this last point, the bill so far provides for the classification of infringements as minor, serious and very serious. Minor offenses would be punishable with a written warning or a fine of 1 to 100 UTM, serious offenses with a fine of 101 to 5,000 UTM and very serious offenses with a fine of 5,001 to 10,000 UTM.

It should be noted that the bill is currently being discussed in the Senate, in the first Constitutional procedure.

Should you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).

Ministry of Science submits to public consultation the first National Policy on Artificial Intelligence.

On December 15, 2020, the Ministry of Science, Technology, Knowledge and Innovation opened the public consultation regarding the draft of the Artificial Intelligence Policy.

The aim of the consultation is to receive comments from both researchers and developers of artificial intelligence, as well as from citizens who are exposed to this technology on a daily basis. After this step, the first Chilean Artificial Intelligence Policy will be published, which will outline a roadmap for the responsible development and adoption of this technology in the country.

The draft includes a description of artificial intelligence and its implications for Chile, the process of creating the policy, its guiding principles and the axes on which it is built. Regarding this last point, the proposed axes are the enabling factors (technological infrastructure, development of talent and data), development and adoption, as well as ethics, legal and regulatory aspects and socio-economic impacts.

It will be possible to participate in the consultation until January 6, 2021 at 11:59 p.m.

The draft can be reviewed at https://drive.google.com/file/d/1oJBEV4Y7mIAEtjTu2nqamnHdQNgEq-si/view

You can participate in the consultation by filling out the form available in bit.ly/FormularioIArtificial

If you require additional information on this matter, you may contact Jorge Tisné (jtisne@jdf.cl).

Council for Transparency approves updated and consolidated text of its recommendations on personal data protection addressed to State Administration bodies

On December 7, 2020, Resolution No. 304 was published in the Official Gazette by which the Council for Transparency approves the “Updated and consolidated text of the recommendations of the Council for Transparency on the protection of personal data by the organs of the State Administration and replaces text that indicates” (the Recommendations).

The Recommendations are intended to guide the concrete application of the new fundamental right to the protection of personal data, in addition to providing legal criteria to the State Administration bodies in the processing of personal data carried out within the scope of their competences, in order to comply with the legal obligations they have as data controllers, in accordance with the provisions of Law No. 19,628 and other relevant regulations.

The Recommendations, by way of introduction, develop definitions (personal data, sensitive data, register or database, data controller, data processing, data processor, sources accessible to the public, out-of-date data, statistical data and data dissociation); describe the guiding principles of data processing (lawfulness, quality, duty of information, security, confidentiality and special protection of sensitive personal data); and state the rights of the holders of personal data (access to their own data, rectification or modification, cancellation or deletion and blocking of data).

Then, the Recommendations provide guidance on various matters involving the State administration bodies with respect to the personal data of their holders. In this sense, they are addressed individually:

i) Procedure and form for the exercise of rights, as well as limitations to their exercise;
ii) Specific obligations when processing the data;
iii) Special rules for the processing of sensitive personal data;
iv) Processing of personal data relating to crimes, administrative infringements or disciplinary offences;
v) Obligation to register the databases in the Registry of Personal Data Banks in charge of Public Bodies;
vi) Communication or transmission of personal data;
vii) Processing of data through a data processor;
viii) Security measures of data banks or registries;
ix) Obligations in case of data processing for surveys, market studies and opinion polls;
x) Liability for infringements and right to indemnification;
xi) Data protection officer; and
xii) Recommendations on personal data protection by design.

In case you require additional information on this matter, you may contact Jorge Tisné (jtisne@jdf.cl).

Supreme Court overrides demand for restitution of funds granted to National Doctoral Program scholar.

In an interesting resolution dated November 3, 2020, the Supreme Court (Role No. 92.008-2020), upheld the ruling of the Court of Appeals of Valdivia and accepted the Appeal for Protection filed by a scholarship holder of the National Doctoral Program against the National Agency for Research and Development (“ANID”).

The facts that motivated the action were that in 2008, CONICYT, now ANID, granted the appellant a scholarship to attend the Doctorate Program in Anthropology at the Universidad Católica del Norte. However, in ANID’s opinion, the appellant obtained the degree of Doctor after the date established by the rules and regulations (2018), so when he was in default, he decided to request the restitution of the funds granted for that purpose.

The Supreme Court, in view of the purpose of the scholarship granted and pursuant to Section 2 of Law No. 20.905 (as amended by Law No. 21.006), declared that the appellant had obtained the degree of Doctor less than one month later than the date established by the applicable rules and regulations.

In this regard, the Court held that “without a doubt, the appellant fully complied with the obligation imposed by the respondent when it decided to finance his studies at the Universidad Católica del Norte, since, as is clear from the respective Rules of Procedure, the purpose of the competition in question was to pay for ‘studies leading to a Doctorate in Chilean Universities,’ which is precisely what the appellant did” (Recital Seven).

Consequently, the demand for the restitution of all the money was arbitrary, and therefore, violated the fundamental guarantees of equality before the law and the appellant’s right to property.

The sentence was agreed upon with two dissenting votes, which were to revoke the sentence that had been raised and to dismiss the attempted Appeal for Protection. This was based on the fact that the facts that were the object of the action were not undisputed and because the contested act was in accordance with the law (restitution of the amounts paid) since the degree was obtained after the date established by the applicable regulations.

In case you require additional information on this matter, you may contact Jorge Tisné (jtisne@jdf.cl).

Santiago Court of Appeals pronounces itself on the “Right to Oblivion”.

On October 27, 2020, the Court of Appeals of Santiago (Role No. 16.010-2020), rejected the Appeal for Protection filed against the search engines Google, Bing, Yahoo and the encyclopedic web Wikipedia (the respondents).

The facts that motivated the appeal were that the appellant had been denounced in a newspaper report as the alleged author of illegal conduct of a sexual nature, by virtue of which the Public Ministry initiated an investigation, concluding with the definitive dismissal of the appellant.

In this regard, the complainant pointed out that the information published by the defendants in connection with the investigation constituted an arbitrary and illegal act, since it violated his rights to psychological integrity and privacy. He based his claim on the protection of the “right to forget”, linking it to the right to cancel personal data under Law 19.628 on the protection of private life.

The Court of Appeals of Santiago described the “right to forget” as the aspiration of a person to the elimination of information that causes him harm and that is contained in computer systems connected to the world information network.

Likewise, the Court indicated that such right is not established in the Chilean legislation and that search engines are not responsible for the data created by users, but that their function is limited to indexing the information, which is created by third parties under the protection of the freedom to express an opinion and to provide information.

Finally, he ruled out the violation of fundamental guarantees because the information indexed was true and current (not outdated).

It is worth mentioning that the case is not firm and enforceable, and the appellant may infer an appeal to the Supreme Court.

In case you require additional information on this matter, you may contact Jorge Tisné (jtisne@jdf.cl).

Ministry of Science, Technology, Knowledge and Innovation approves “National Policy on Science, Technology, Knowledge and Innovation.

On October 27, 20202, Decree No. 4 of the Ministry of Science, Technology, Knowledge and Innovation (hereinafter the “Policy”) was published in the Official Gazette.

The Policy assumes Science, Technology, Knowledge and Innovation as key transforming agents to achieve a sustainable and integral development, which contributes to trace its own path to improve the quality of life of people and develop the territories.

The policy is defined on the basis of the following guiding principles (i) Excellence and adaptability; (ii) Partnership; (iii) Openness and transparency to promote an accessible and global information ecosystem; (vi) Diversity; (vii) Ethical commitment.

The Policy defines four main lines of action aimed at establishing links with society, action for the future, strengthening the ecosystem of science, technology, knowledge and innovation, and finally, institutional capacities.

The complete Decree is available at https://www.diariooficial.interior.gob.cl/publicaciones/2020/10/27/42790/01/1835789.pdf

In case you require additional information on this matter, you can contact Jorge Tisné (jtisne@jdf.cl).

Ministry of Economy submits to citizen consultation “Regulation of Electronic Commerce”.

Article 30 of Law No. 19.496, which establishes Rules on the Protection of Consumer Rights, provides that when products or services are offered on Internet sites (e-commerce), suppliers must offer their essential characteristics and services, and must comply with the conditions determined by a Regulation, which is still pending.

In order to ensure that consumers make duly informed decisions, strengthening their right to free choice, the Ministry of Economy has made available to the public the draft “Electronic Commerce Regulations”. In this way, comments and opinions are sought to improve the preliminary text of the project.

The project establishes minimum information duties for the different actors in electronic commerce, whether they are sellers or intermediaries (marketplace), in order to guarantee compliance with consumer rights.

The consultation began on October 5, 2020 and will end on October 27.

The minutes of the consultation and the proposal for a regulation are available at https://www.economia.gob.cl/2020/10/05/consulta-ciudadana-reglamento-de-comercio-electronico.htm

In case you require additional information on this matter, you can contact Jorge Tisné (jtisne@jdf.cl)