Challenges to Achieve Privacy for Online Consumers in Mexico

Global Framework for Privacy Challenges to Achieve “Privacy” for Online Consumers in Mexico
Joel Gómez-Treviño, LL.B., LL.M.
Founder Chairman of AMDI
Vice Chairman of the National Association of Corporate Lawyers, Nuevo Leon Chapter
Professor of Law, ITESM. E-commerce Masters, LL.M. & LL.B. Programs
Asia-Pacific Economic Cooperation Privacy Forum Electronic Commerce Steering Group Senior Officials Meeting I Mexico City February 22, 2002 http://www.apec2002.org.mx

Mexican Satutes related to “Privacy”
Political Constitution of Mexican United States
The private communications shall not be violated. The law will impose criminal sanctions to any action that infringe the freedom and privacy of communications.
Only the Federal Judicial Authority can authorize the eavesdropping of communications (§ 14, 9th paragraph)

Copyright Law
Title IV, Chapter IV.- Software & Databases
The access to private information about persons contained in databases, as well as the publication, reproduction, disclosure, public communication and broadcast of such information, shall require previous consent of the persons on the database. (§ 109)

Federal Law for the Protection of Consumers
The supplier (seller) shall keep confidential the information provided by consumers, except by express consent of the consumer. § 76 bis, I.
The supplier shall use an available technical mechanism to provide security and confidentiality to the information submitted by the consumer, and shall inform to the consumer previously to any transaction the general characteristics of such mechanism. § 76 bis, II.

Federal Law for the Protection of Consumers...
If the consumer decides not to receive slogans ( avisos comerciales ), the supplier shall respect such decision. § 76 bis, II.
The intention of the legislator was to ban spamming practices. However, the section II was improperly drafted.
The phrase “ avisos comerciales ” does not mean (legally speaking) Spam , UCE or advertising of any nature.
According to the Industrial Property Law , “ avisos comerciales ” means the slogans that the merchants use to sell their products. IPL § 99 – 104.

Federal Law for the Protection of Consumers...
Any infringement of the previous sections shall be sanctioned with a fine from USD$4.00 to USD$10,000.00 dollars ($40.35 to $100,875 pesos)

Bills pending in the Congress
Senators Chamber
Federal Law for the Protection of Personal Data Feb. 14, 2001. PRI Political Party.
Data collected must be adequate, accurate and proportional for the purpose they are collected.
Data collection must be done by legal mechanisms that guarantee the respect to constitutional guaranties, and especially those related with the honor and intimacy.
Purpose.
Accurate and up to date information.
Access and cancellation when the purpose.

Bills pending in the Congress
Representatives Chamber
Federal Law for the Protection of Personal Data Sept. 6, 2001. PRD Political Party.
Consent.
Treatment of sensible data.
Conditions to collect personal data:
Data must be true, adequate and not excesive.
Purpose.
Accurate and up to date data.
Access and cancellation/destruction.

OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data O rganization for E conomic C o-operation and D evelopment

OECD Guidelines
Collection Limitation Principle
Data Quality Principle
Purpose Specification Principle
Use Limitation Principle
Security Safeguards Principle
Openness Principle
Individual Participation Principle
Accountability Principle

OECD Guidelines
Notice , individuals be notified when personal data is collected from them;
Purpose , data collected for one purpose should not be used later for another;
Consent , personal data should not be disclosed without the consent of the individual it is collected from;
Security , any compilation of personal data from individuals should be kept secure from potential abuses by other parties;

OECD Guidelines...
Disclosure , individuals should be able to learn who is collecting data about them;
Access , individuals should be allowed to access data that has been collected and have corrections made if the date is not accurate;
Accountability , some means of holding those who collected personal data accountable for compliance with these principles.

EU Data Protection Directive (95/46/EC)
Consent obtained from individuals before personal identifiable information is transferred from the entity collecting the information to a third party.
Disclose the purpose for which the data is collected.
Privacy . Adequate laws ensuring privacy must exist in third party countries outside EU before individual´s personal identifiable data is transferred to that country.
Personal identifiable data is defined as any information that can be linked “directly or indirectly to a specific person, and can include names, unique physical characteristics, or even internet cookies”.

Regulation of the Collection of PII in US
Self-Regulatory Schemes
Notice TRUSTe
Choice Opt-out v. Opt-in
Access USA v. EU

Regulation of the Collection of PII in US
Dramatic Change in the FTC's Approach to Online Privacy ( 1999 ) .
Only 20% of web sites that were collecting information from site visitors implemented all four of the fair information practice principles -- notice , choice , access , and security .
The FTC categorized existing self-regulatory measures as ineffective and recommended Congress enact legislation to “ensure adequate protection of consumer privacy online”.
Instead of federal legislation, the Department of Commerce created a national safe harbor complying with the Data Protection Directive.

The Safe Harbor Agreement
United States approach to privacy:
Industry self-regulation
Sectoral approach that relies on a mix of legislation, regulation and self-regulation.
European Union approach to privacy:
Comprehensive legislation

The Safe Harbor Agreement (SHA)
Compliance with the Data Protection Directive in other (non EU) countries is being achieved through legislative regulations and national model standards.
Canadadian Model Code for the Protection of Personal Information :
Accountability Accuracy
Identifying purpose Safeguards
Consent Openness
Limiting collection Individual access
Limiting use, disclosure Challenging compliance and retention

The Requirements of the SHA
To receive the benefits of the SHA organizations must comply with the Principles and publicly declare that they do so.
Organizations can self-certify that they are elegible for the SHA after joining a self-regulatory privacy program adhering to the safe harbor´s requirements.
Annual self-certification to the Department of Commerce is necessary for continued participation in the safe harbor.

The Requirements of the SHA
Seven primary principles of the SHA are:
Notice
Choice
Onward transfer
Security
Data integrity
Access
Enforcement

Habeas Data in Latin America
Argentina
Brasil
Chile
Colombia
Costa Rica
Ecuador
Paraguay
Perú

Challenges to achieve Privacy for On-line Consumers in México
México has not formally recogized the figure of Habeas Data .
Current “privacy” legislation in México is not adequate to protect consumers and their personal data:
The law does not include the main and common principles of privacy adopted in several countries.
Consumers do not know their rights and how to enforce them.

Nexts steps...
Adopt the Habeas Data
Enact a Federal Law for the Protection of Personal Data that shall include at least OCDE Guidelines princinples or SHA principles.
Promote self-regulatory schemes for the industry with higher standards than those imposed by law.
Establish a Federal Agency that will be responsible for the surveillance and enforcement of the law.
Create a website and promotional campaigns that provide comprehensive information for consumers.

Key learning points...
Learn from the experiences from other countries:
Hong Kong: Self regulation did not seem to offer an adequate level of privacy for consumers. – Mr. Tang.
United States:
After a random sampling discovered that only 20% of web sites that were collecting information from site visitors in 1999 implemented all four of the fair information practice principles -- notice, choice, access, and security.
The FTC categorized existing self-regulatory measures as ineffective and recommended Congress enact legislation to “ensure adequate protection of consumer privacy online”.
FTC, Privacy Online: Fair Information Practice in the Electronic Marketplace 2 (2000),
http:// www.ftc.gov/reports/privacy2000/privacy2000.pdf

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Challenges to Achieve Privacy for Online Consumers in Mexico

by Joel Gomez on Jul 27, 2011

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Challenges to Achieve Privacy for Online Consumers in Mexico — Presentation Transcript