Still the only southern hemisphere state whose data protection laws have earnt the “adequate” accolade from the EC, Argentina is toughening up rules on what direct marketing has to say about opt out rights. Ramón Moyano, Maximiliano D’Auro and Julieta Bontempi from the Buenos Aires law firm Estudio Beccar Varela.
Topic: Direct marketing
Who: Argentine Data Protection Commissioner (the National Directorate for Personal Data Protection)
When: 10 March 2009
Law stated as at: 19 March 2009
According to the new Resolution No. 4/2009 of the Argentine National Directorate for the Protection of Personal Data, all marketing communications in the country must include a notification to recipients of their right to request their exclusion from the relevant database, the way to exercise such right and the transcription of certain legal provisions.
Strictly speaking, the law has come to reinforce the right of every personal data owner to request the removal or blockage of his/her/its name from marketing databases, already in force in Argentina as of the year 2000 and worldwide known as “opt-out”.
Up to know, in order to comply with the opt-out rule, companies in Argentina typically inserted brief notices in the bottom of their marketing messages informing targets that they could -for instance- unsubscribe from their mailing list.
More compulsory disclosures
From now on, in addition to informing recipients of their right to be removed from the database, marketing communications must also specify the existing mechanism to exercise such right and include the following quote from the Argentine Data Protection Law 25,326 (in Spanish) as well as the transcription of a paragraph from the Regulatory Decree 1558/2001 (three times more extensive): “The data owner may at any time request the removal or blockage of his/her/its name from the databases to which the present section refers.”
Together with this informative duty, the new resolution emphasizes the operating aspect of the right of removal or blockage, imposing on those responsible for marketing databases the obligation to verify that any mechanisms implemented to allow the exercise of the opt-out right are adequate and sufficient to duly fulfill the potential requests of the data owners.
Email "Advertisement" in subject line rule
Unsolicited or non-consented communications merit a separate mention, since in addition to the aforementioned requirements, these must now evidence their marketing nature in a noticeable manner; when sent through e-mail, their subject shall include the term "Advertisement".
Through this new resolution, the National Directorate endeavours to promote and guarantee the right of removal or blockage as well as to facilitate the identification of the unsolicited advertisements.
New law burnishes Argentina's "adequate data protection law" status
The resolution gives in fact a new and significant step towards the effective protection of the right to personal data protection, complementing a creditable and avant-garde legal framework that in 2003 earned the country the recognition by the European Community as providing "adequate protection" for personal data transferred from the Community (Commission of the European Communities Decision of 30/06/2003, pursuant to Directive 95/46/EC). This notwithstanding, it is evident that the objectives of Resolution No. 4/2009 are highly ambitious and that its full compliance will not be achieved promptly nor easily.
The resolution leaves in fact some question marks, for instance over text messages sent to mobile phones. The length of the mandatory quotes is visibly incompatible with such system. Rather than construing that companies must flood targets with SMS containing the complete legal quotations mentioned above (which would undoubtedly bring more nuisance than relief to data owners), it seems reasonable to interpret that mobile messaging does not fall within the scope of the new regulation or -at least- of the obligation to quote the Data Protection Law and Decree.
Similar questions arise in relation to telephone calls and blast voicemail systems for marketing purposes. Companies that carry out telephone advertising campaigns already wonder whether the new regulation applies to them, and to what extent. Technological innovations in advertising media are clearly demanding new and more specific solutions. In the future, it is expected that the different means of communication currently used to reach consumers with marketing offers receive the specific regulations they need.
Why this matters:
By virtue of this new Regulation, the protection of marketing targets has been strengthened. From now on, companies carrying out direct marketing campaigns must not only inform recipients on their right to opt-out and the procedure to exercise it but also to quote certain legal provisions and ensure that they implement effective mechanisms to fulfill all potential opt-out requests.
However, at the same time, the new regulation has a fundamental implicit connotation: by setting forth requirements with regards to unsolicited communications, it indirectly endorses their validity. From this perspective, companies that regularly perform this type of operations have welcomed Resolution No. 4/2009.
In fact, the current legal framework does not categorically establish the validity/invalidity of marketing communications that have not been previously consented or requested. While the Data Protection Law seems to adhere to the opt-in system (i.e., to the prior consent rule), the Data Protection Decree authorizes the non-consented processing -of certain categories of data- for marketing purposes, provided that receiver be allowed to request his/her/it removal from the relevant database.
Opt out/opt in controversy not yet settled
This controversy has not been settled yet. Up until now, the rule of previous consent has prevailed in Argentine Courts. However, companies carry out marketing campaigns under the Decree’s opt-out rule on a daily basis (and practically none administrative sanctions have been imposed so far). Within this framework, the new Regulation 4/2009 provides a counterweight that tips the scale in favour of direct marketing operators. In fact, the restrictions and conditions to advertising communications that have not been previously allowed/requested, permits to infer that -as long as those are fulfilled- unsolicited marketing is licit to the administrative authority. Likewise, companies have a new legal argument to sustain the validity of unsolicited marketing in the judicial arena.
Something similar occurred in 2006 with Law 2,014 of the City of Buenos Aires, which created the “Don’t call” Registry (not yet implemented) for people who did not desire to be contacted on their fixed and/or mobile phones for marketing purposes. Many individuals were delighted with the idea, for they regarded it as the realization of their ever-lasting desire to opt-out every single advertising phone promotion. However, many marketing companies were pleased too, for they would be exempted from collecting prior consents (the burden of opting out resting on the individuals) and validity of unsolicited calls to unregistered targets would be unquestionable.
As it has been shown, the Argentine legal framework on direct marketing is developing and, as it does, new controversies and questions arise. We expect that the Argentine Congress and Data Protection Commissioner will continue working to situate Argentina in the vanguard of privacy and data protection. Local courts are also to play a key role, when interpreting of these rules, so marketing stakeholders should remain alert.
Estudio Beccar Varela, Buenos Aires
Estudio Beccar Varela, Buenos Aires
Estudio Beccar Varela, Buenos Aires