Privacy in Argentina: overview

A Q&A guide to data protection in Argentina.

This Q&A guide gives a high-level overview of data protection rules and principles, including obligations on the data controller and the consent of data subjects; rights to access personal data or object to its collection; and security requirements. It also covers cookies and spam; data processing by third parties; and the international transfer of data. This article also details the national regulator; its enforcement powers; and sanctions and remedies.

To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.

This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.

Contents

Legislation

1. What national laws (if any) regulate the right to respect for private and family life and freedom of expression?

Section 14 and 32 of the Argentine National Constitution (Constitution) guarantees the right to freedom of expression. In addition, section 75, subsection 22 of the Constitution, incorporates several international treaties of constitutional hierarchy that also refer to the right of freedom of expression (for example, section 13 of the American Convention on Human Rights).

Section 1770 of the Argentine Civil and Commercial Code, supports the right to privacy. This is also provided in section 11 of the American Convention on Human Rights (which boasts constitutional hierarchy in Argentina).

 
2. Who can commence proceedings to protect privacy?

Section 16 of the Argentine National Constitution (Constitution) provides that all inhabitants of Argentina are equal before the law. Therefore, privacy laws apply to all inhabitants of Argentina. However, privacy rights can be weighed against other constitutional rights, such as the right to freedom of expression. In cases involving public figures in Argentina, privacy rights are more strictly weighed against freedom of expression rights, and it is not unusual for freedom of expression rights to prevail.

Both legal theory and precedents (including the Supreme Court case of Ponzetti de Balbín, Indalia c. Editorial Atlántida, S. A.) have demonstrated that in cases where the offended party is a public figure, the privacy rights protecting a person's life (the sphere of intimacy) are significantly reduced as a consequence of being in the public domain, within what can be justified as being in the general public interest.

 
3. What privacy rights are granted and imposed?

The right to privacy is mainly protected by section 1770 of the Argentine Civil and Commercial Code, which prohibits arbitrary intrusion into the lives of others. Examples of arbitrary intrusion include publishing pictures, spreading correspondence, humiliating others about their individual customs or feelings, and/or disrupting their intimacy in any way.

Various civil and criminal remedies are available to redress the infringement of privacy rights protected by section 1770 of the Argentine Civil and Commercial Code (see Question 5).

Legal theory and precedents demonstrate that the scope of the right to privacy depends on the individual concerned. The sphere of privacy can cover many different aspects of life depending on what is considered to be private. From a general standpoint, to determine what may be considered a violation of privacy, it is necessary to take into account what is customary behaviour for individuals with similar characteristics to the individual whose privacy is involved (that is, if an actor is involved, what is customary for actors). From a more particular standpoint, another factor to consider is how the individual has previously acted in relation to his privacy, and the levels of tolerance shown to the press or public. If an individual has demonstrated tolerance for the disclosure of certain aspects of his life, the courts will interpret those aspects as not being private in the future.

In addition to any protection provided by the general right to privacy, there are specific regulations regarding the unauthorised use of images, regulated by section 31 of National Law 11.723 and Section 52 and 53 of the Civil and Commercial Code.

 
4. What is the jurisdictional scope of the privacy law rules?

Argentine laws are mandatory for all people who inhabit the Argentine territory (section 4, Argentine Civil and Commercial Code). The Argentine Supreme Court has long held the opinion that as a principle of international law, the courts can only have direct jurisdiction over the persons and assets that are within their territory. Therefore, the general principle provides that Argentine law applies within the territory of Argentina (as opposed to the extra-territoriality principle).

 
5. What remedies are available to redress the infringement of those privacy rights?

The civil remedies available to redress the infringement of privacy rights are contained in section 1770 of the Argentine Civil and Commercial Code. The rule basically provides that in the case of an infringement of a third party's privacy rights, the offended party may request the judge to order the:

  • Offending party to cease performing the infringing acts.

  • Payment of adequate compensation to the offended party, which may include the publication of the judicial decision in a local journal or newspaper where the act was committed.

However, if an individual's right to personal honour is violated under section 52 of the Civil and Commercial Code, then section 1770 does not apply.

 
6. Are there any other ways in which privacy rights can be enforced?

Section 109 of the Argentine Criminal Code punishes with a fine the slander or false accusation towards a natural person on the perpetration of a crime. Additionally, section 110 of the Argentine Criminal Code also punishes with a fine the person who intentionally dishonours or discredits a natural person. However, these sections do not apply to public servants who are being slandered or dishonoured.

 

Contributor profiles

Maximiliano D’Auro, Partner

Estudio Beccar Varela

T +54 11 4379 6830
F +54 11 4379 6860
E mdauro@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Solicitor, Universidad Nacional de Mar del Plata, Argentina, 1997

Areas of practice. General commercial advice to companies; M&A; banking; anti-bribery and corruption; anti-money laundering; data protection.

Non-professional qualifications. LLM, London School of Economics, 2000

Recent transactions

  • Working on many cross-border projects of global clients involving multi-jurisdictional data privacy issues (including broad data protection questionnaires; international transfer of personal data, migration or centralisation of data processing; e-mail monitoring and other employees' privacy issues; Internet regulation, on-line child protection and websites' potential liability).

  • Representing a large global bank, obtaining the first ever resolution from the Argentine Data Protection authority allowing the local subsidiary of the bank to transfer personal data of its client to a global processing centre located outside Argentina. The Authority resolved that the agreement entered into between transferor and transferee afforded the transfer an "adequate level of protection", which made the transfer legal.

Languages. Spanish, English

Professional associations/memberships. Buenos Aires Bar Association; International Bar Association; ABA; AIJA.

Publications

  • "Protection of personal data in financial activities", Régimen jurídico de los datos personales, Tomo II Abeledo Perrot, Buenos Aires, 2014.

  • "The implementation of the National Registry of Databases", Jurisprudencia Argentina 2005-III-861.

  • "Bank secrecy and the obligation to report suspicious transactions" La Ley, 25/6/2004.

  • "The secrecy in the bill to amend the Anti-money laundering law", El Cronista, 3/4/2006.

  • Latin America's giant leaps in the data privacy field (Data Protection Law & Policy, printed edition, Cecile Park, September 2011), (co-authored).

  • "The legitimacy of workplace email monitoring in Argentina" (Data Protection Law & Policy, printed edition, Cecile Park, September 2010), (co-authored).

  • "Qué deben hacer las firmas para cumplir con el Registro No Llame?" ("What must companies do to comply with the Don’t Call Registry?", Article for iProfesional.com, 2010).

  • "Third party content. Da Cunha Virginia c/Yahoo de Argentina SRL y Otro s/Daños y perjuicios" (E-Commerce Law Reports, printed edition, 2010), (co-authored).

  • "Argentina strengthens opt-out regime" (Marketinglaw.co.uk, OsborneClarke, 2009), (co-authored).

  • "General Overview of Personal Data Protection in Argentina" and "Argentine Rules on Direct Marketing" (both published in the global data protection online platform powered by Data Guidance, Argentine Chapter, 2009), (co-authored).

  • "Court judgment against Yahoo and Google in Argentina" (E-Commerce Law Reports, 2009), (co-authored).

  • "Violation of email becomes a criminal offense in Argentina" (Data Protection Law & Policy, printed edition, Cecile Park, 2008), (co-authored).

Florencia Rosati, Partner

Estudio Beccar Varela

T +54 11 4379 6830
F +54 11 4379 6860
E frosati@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Lawyer, Universidad de Buenos Aires, 1997; postgraduate Degree in Telecommunications Law, Universidad de Buenos Aires, 2001; specialisation in New Technologies Law, Universidad Católica Argentina, School of Law, 2010.

Areas of practice. Intellectual property; communications; information technology; patents and trade marks.

Languages. Spanish and English.

Professional associations/memberships. Buenos Aires Bar Association; International Trade mark Association (INTA) Internet Committee (Internet Governance and Contracts Subcommittee) 2014 to 2015; ITech Law Association.

Manuela Adrogué, Associate

Estudio Beccar Varela

T +54 11 4379 6831
F +54 11 4379 6860
E adroguem@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Lawyer, Universidad Torcuato Di Tella, 2012.

Areas of practice. Intellectual property; communications; information technology; patents and trade marks.

Languages. Spanish and English.

Professional associations/memberships. Buenos Aires Bar Association.


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