In recent years, Panama has taken significant legislative steps to regulate electronic data protection and internet commerce. However, this regime remains a work in progress. The primary laws and regulations thus far enacted are Law 51 of 22 July 2008, as amended by Law 82 of 9 November 2012 ("Law 51"), and Executive Decree No. 40 of 19 May 2009 ("Decree 40"). The central purpose of both Law 51 and Decree 40 is to regulate the creation, utilization and storage of electronic documents and signatures in Panama, through a registration process and the supervision of providers of data storage services. Law 51 and Decree 40 provide for enforcement through the General Directorate of Electronic Commerce (Dirección General de Comercio Electrónico) ("DGCE").
DEFINITION OF PERSONAL DATA
Personal Data is not expressly defined under Panamanian law. However, it is generally deemed to include information that can specifically identify an individual, such as one's name, postal address (including billing and shipping addresses), telephone number, e-mail address, credit card number, or a username.
DEFINITION OF SENSITIVE PERSONAL DATA
"Sensitive Personal Data" is not defined under Panamanian Law.
NATIONAL DATA PROTECTION AUTHORITY
The General Directorate of Electronic Commerce
Under Decree 40, electronic data storage companies and companies engaged in online electronic signature verification must register with the DGCE. For companies otherwise engaged in e-commerce-related activities, registration with the DGCE is voluntary and can be completed online and free of cost. Registration must occur no later than 15 days prior to the commencement of data processing activities and shall include, inter alia, the following information:
- name of the company;
- company´s physical address, telephone and fax number;
- legal representative of the company;
- company´s internet address or URL;
- contact email provided by company to customers;
- public Registry and Ministry of Commerce Registration Information;
- in the event that an undertaken activity requires specific authorization or permits, evidence thereof;
- tax Identification Number;
- description of services offered by the company, including pricing information and applicable taxes; and
- the Company's code of conduct.
Moreover, for companies that are engaged in each of the activities for which registration is mandatory, Law 51 and Decree 40 set forth certain additional registration requirements.
DATA PROTECTION OFFICERS
Appointment of a data protection officer is not required.
COLLECTION AND PROCESSING
In Panama, personal information is protected at the constitutional level. The Constitution provides that any person or entity that obtains personal information and/or personal documents, either from a person or a company who provides such information willingly, or through any other means, may not disclose such information without the consent of its lawful owner (there is no specific definition or explanation of who is considered the "lawful owner" of personal information). An exception to the consent rule is the disclosure of such information pursuant to a valid judicial or governmental request.
The disclosure of personal information without consent is also prohibited by the Panamanian Criminal Code. Criminal penalties apply to the disclosure of personal information when the disclosure causes harm to the information's lawful owner. Law 51 specifically establishes that this criminal law prohibition applies to electronically stored information.
Panamanian law further requires that providers of online data storage services take reasonable measures to ensure that company personnel who come into contact with confidential information do not have a criminal record, have obtained the necessary technical skills to handle such data and information, and possess reasonable knowledge of existing legal restrictions related to the disclosure of such information. Although this prohibition is specifically intended to apply to entities that provide online data storage services, it is not unforeseeable that it could also be construed to apply to any company engaged in e-commerce.
Although the Panamanian e-commerce regulatory framework is not yet fully developed, the existing regulations follow the constitutional principle that the consent of the lawful owner is required for the transfer of any personal information.
Pursuant to Law 51, when a customer provides his email address during the process of acquiring or subscribing to a service offered online, the company providing such service must disclose to the customer its intent to use the email address in the future for commercial communications and, further, must obtain the customer's express consent for such purposes. The client or customer must also be able to revoke such consent easily, through a simple process made available by the provider of the service.
While the manner in which this restriction appears to have been drafted suggests that it applies exclusively to online service providers, its broader application to all companies that sell products online or are engaged in e-commerce activities is foreseeable.
Decree 40 establishes certain security requirements applicable only to electronic data storage and electronic signature verification companies, for whom registration with the DGCE is mandatory. The main requirements are adherence to the security parameters periodically published by the DGCE, and the performance of annual self-audits, the results of which must be filed with the DGCE in order for the company to renew its registration. In addition, these companies must create a disaster recovery plan that allows such providers to re-establish regular operations within twelve hours of the occurrence of a disruptive event.
No similar provisions have been enacted with respect to companies who engage in other types of e-commerce, ie, those for whom registration is voluntary.
Law 51 does not require breach notification.
The DGCE is responsible for enforcement of the existing e-commerce and related regulations, including the publication of additional complementary regulations. Sanctions include the suspension or permanent ban of the activities of companies that infringe certain regulations, as well as fines of up to US$150,000.
With respect to email advertising, Panamanian law requires that all such emails: (i) state that they are commercial communications; (ii) include the name of the sender; and (iii) set forth the mechanism through which the recipient may choose not to receive any further communications from the particular sender. These requirements apply to other promotional offers as well.
Further, although opt-out tools are not prohibited, the client's initial opt-in consent is specifically required to use the client's email for advertising purposes. Further, although no specific prohibition has been enacted with respect to the use of information for online advertising, obtaining the customer's consent is always preferable.
ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)
The existing regulatory framework does not yet address location data, cookies, local storage objects or other similar data-gathering tools.
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