SOUTH AMERICA - Data Protection and GDPR Review

The history of data protection in South America is diverse, as the continent is home to multiple nations with their own legal traditions and approaches to privacy and data protection. However, over the years, many South American countries have moved towards harmonizing their data protection laws and following global best practices. Below is a broad overview of key milestones:

1990s: Early Movements and International Influence

The 1990s saw a growing awareness of the importance of data protection, inspired in part by developments in Europe and the United States.
Argentina took a pioneering role, enacting the Personal Data Protection Act in 2000, which was one of the earliest comprehensive data protection laws in the region.

Early 2000s: National Legislation and Emerging Frameworks

Following Argentina's lead, countries like Uruguay, Chile, and Colombia began enacting their own data protection laws.
Uruguay passed its data protection law in 2008, becoming the second country in South America to obtain an "adequacy decision" from the European Union, thereby allowing for easier data transfers between Uruguay and EU member states.

2010s: Modernization and Adaptation

During this period, many countries revised their existing laws or implemented new ones to account for technological advances.
Brazil's General Data Protection Law (LGPD), enacted in 2018, marked a significant milestone. Inspired by Europe's GDPR, LGPD established comprehensive data protection regulations applicable to any organization processing the data of Brazilian residents.
Colombia updated its data protection regime through Law 1581 of 2012, focusing on the rights of the data owner and establishing stringent requirements for data controllers and processors.

GDPR Influence

The introduction of the General Data Protection Regulation (GDPR) in the European Union in 2018 had a ripple effect in South America.
Countries like Chile and Argentina began to consider revisions to their data protection frameworks to align more closely with GDPR standards.

Ongoing Developments and Future Outlook

There is ongoing legislative activity to update or enact data protection laws. For example, Peru's Law No. 29733, enacted in 2011, is under review for potential updates.
South American countries are increasingly participating in international forums related to data protection and privacy, indicating a growing consensus towards data protection standards that align with global best practices.

While South American nations each have their unique set of laws and regulations, there is a clear trend towards the modernization and standardization of data protection policies across the continent. These ongoing efforts aim to safeguard individual rights while facilitating international data flows, especially in the age of global digitalization.

This overview is meant to provide a broad look at the history of data protection in South America and may not cover all the nuanced developments in each country's legal landscape.

The General Data Protection Regulation (GDPR) is an EU regulation that has global implications, including for businesses and organizations in South America. This guide aims to give an in-depth understanding of how South American entities can achieve compliance with GDPR while also meeting local data protection laws.

GDPR: The Extraterritorial Reach
South American Data Protection Laws
Applicability and Scope
Rights of EU Data Subjects
Responsibilities Under GDPR
Appointing a Data Protection Officer (DPO)
Data Breach Notification
International Data Transfers
Fines and Enforcement
Steps for GDPR Compliance
FAQs
Conclusion

1. GDPR: The Extraterritorial Reach

GDPR extends to any organization worldwide that processes the personal data of EU residents. This means South American businesses targeting or offering services to EU citizens need to comply with GDPR.

2. South American Data Protection Laws

Countries like Argentina, Brazil, Colombia, and Uruguay have their data protection laws, often inspired by GDPR. Complying with local regulations is crucial but does not automatically make a business GDPR-compliant.

3. Applicability and Scope

Any South American company that:

Offers goods or services to EU residents, or
Monitors the behavior of EU residents,

needs to adhere to GDPR.

4. Rights of EU Data Subjects

Under GDPR, EU data subjects have various rights such as:

Right to access
Right to rectification
Right to erasure
Right to object
Right to data portability

5. Responsibilities Under GDPR

Key responsibilities include:

Transparent and lawful data processing.
Implementing adequate security measures.
Conducting Data Protection Impact Assessments for high-risk activities.

6. Appointing a Data Protection Officer (DPO)

A DPO may be necessary based on the scale and nature of data processing activities. This person ensures GDPR compliance and serves as a contact point for data subjects and authorities.

7. Data Breach Notification

GDPR mandates the reporting of certain data breaches to relevant authorities and data subjects within 72 hours.

8. International Data Transfers

Data transfers to non-EU countries, like those in South America, need to meet GDPR requirements through mechanisms like Standard Contractual Clauses (SCCs).

9. Fines and Enforcement

Non-compliance could lead to fines up to €20 million or 4% of the annual global turnover, whichever is higher.

10. Steps for GDPR Compliance

Audit your data processing activities.
Update Privacy Policy and Consent Forms.
Implement proper security measures.
Review and update contracts with data processors.

11. FAQs

Is complying with local laws enough for GDPR compliance?
- No, compliance with local laws and GDPR should be handled separately.

Do I need a Data Protection Officer?
- The need for a DPO depends on the scale and nature of your data processing activities.

12. Conclusion

GDPR compliance is a significant aspect for South American companies dealing with EU citizens. Although the regulatory landscape is complex, achieving compliance can instill trust and open doors for international business.

Note: This guide is meant for informational purposes and should not replace legal advice. Consult with a legal expert for a tailored data protection strategy.