What laws apply to the collection and use of individuals’ personal information?
Data privacy laws have become more prominent in recent years. As the amount of personal information available online has grown substantially, there has been an enhanced focus on the processing of personal data, as well as the enforcement of such laws.
The Personal Data Protection Law (Law 19,628) (PDP) currently sets the basic legal requirements relating to the treatment of personal data in Chile. The Law defines personal data as any data which relates to an individual, identified or identifiable. The PDP relies on individual consent to process personal data, except when there are other legal provisions that authorize the processing of personal information.
The PDP has no special regulation on personal data relating to employees, thus the general rules are applicable to the data protection in the employment. Furthermore, the processing (including just the retention) of an employee’s personal data will normally be regulated by the PDP.
In addition, Article 5 of the Chilean Labor Code recognizes that the powers of the employer are limited by the obligation on employers to respect the constitutional guarantees of the employees, especially if they may affect employees’ intimacy, private life or honor. Article 154 of the Labor Code states that employers should maintain confidentiality of all the information or private data of the employee to which the employer has access due to employment.
The Future of Personal Data Protection in Chile
Chile amended their Constitution in June 2018 to grant all individuals the right to the respect and protection of their private life along with the protection of their personal data (Art. 19, No. 4). It is likely that Chile’s current data protection law will be updated, and there is a bill currently in Congress that, if approved, could replace the current law. The new law, if passed, would implement higher standards than the current Chilean regulation, comparable to ones existing in other countries. However, there is no certainty about the final content of the law and when it will be finally approved.
Chile has not adopted any international instruments on data protection, but it has to adhere to international regulations on privacy, e.g. American Convention on Human Rights, prohibiting any arbitrary interference to private life.
Currently, other than the courts, there is no particular authority in charge of the PDP’s enforcement or sanctioning in Chile.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.