With the advances in technology, it has become routine for advertisers to keep track and record the behavior of individuals online to better know their habits and the effectiveness of advertisement. This is especially true with the rise in use of cell phones, through which advertisers may have access to an unprecedented amount of information, which is not limited to the confirmation that a particular ad has been viewed, but it can include personal data such as location, web browsing habits, exercise routines, just to name a few. In this regard, Chile is not an exception and consumers in our country are also likely to have their online behavior tracked through different technological measures.
Fortunately for advertisers, current local laws are outdated with regards to the use of new tracking technologies. Furthermore, the penalties associated with the breach of the applicable laws are very low, which affects its general compliance. In practice, advertisers may keep track and monitor the effectiveness of their advertising material, with few restrictions.
The most obvious of these tracking technologies is the use of cookies. Unlike other jurisdictions, cookies have not been specifically regulated in Chile. As such, prior warnings to the consumer on the use of cookies is not mandatory and seldom used, as there is certain consensus that, according to current laws, personal data is not being retrieved by the use of cookies. All tracking technologies, which could potentially retrieve personal data, need to follow the general rules given by the Data Protection Act (Law No. 19.628) which establishes that the use of personal data is only allowed by prior written express consent given by the data subjects, unless an exception applies. Consent given through electronic means, such as online click-wrap terms or pop-up boxes is deemed to be compliant with this rule.
In early 2015, the government announced that it would send to Congress a New Data Protection Bill that would update our current regulation and raise the standards of protection, in accordance to other jurisdictions, such as the EU. If approved, the targeted advertising scenario previously described is likely to change, as associated penalties for non-compliance will rise significantly. However, to date, the law bill has been halted due to financing issues. The last update with regards to this issue is that the authorities will seek to formally present the bill in March this year. Until this new bill is approved, advertisers will continue to have a comparatively easy development of behavioral advertising in Chile.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
