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 (email@example.com)