CHILE Law and Practice Contributed by: Claudio Magliona, Bárbara Reyes and Diego Lisoni, Magliona Abogados
4.4 Data Protection in M&A Competition Law Considerations
Regarding data privacy, this practice requires consent from the data subject, unless the data comes from
sources available to the public. 4.3 Employment Privacy Law
The National Economic Prosecutor’s Office (FNE) reviews concentrations where data accumulation may affect competition. The combination of information assets, such as consumer databases and preferences, can create barriers to entry that weaken competition. Furthermore, the FNE evaluates whether a merger might degrade non-price variables, such as the terms of use or privacy policies applicable to users. Asset Deals and Transfer of Databases In asset deals, the transfer of a customer database from the seller to the buyer is legally classified as a “cession” of data. Requirements for Cession Under the current regime, the general rule is that per - sonal data may only be processed (which includes transferring) when the law authorises it or the data subject consents. However, the New Law expands the bases for lawfulness. Future transfers may be justified if they are necessary for the execution of a contract between the data subject and the controller, or for the satisfaction of legitimate interests, provided these do not override the rights of the data subject. Once an asset deal is closed, the status of the parties regarding the data changes. New Controller Status Upon the perfection of a data cession, the New Law establishes that the assignee (buyer) acquires the sta - tus of “data controller” for all legal effects. The assign - or (seller) retains responsibility for any processing they continue to perform. If a cession occurs without nec - essary consent, it may be deemed void, obliging the buyer to delete the data.
The Political Constitution of the Republic of Chile guarantees the respect and protection of the privacy and honour of a person and their family at a constitu - tional level. Such constitutional protection extends to workers. The same protection is guaranteed in Article 5 of the Chilean Labour Code. According to the Labour Department of Chile, employ - ers may regulate the conditions, frequency and time - liness of use of the company’s emails, but may not, under any circumstances, have access to the private email correspondence sent and received by employ - ees. This would violate the fundamental rights granted by the Political Constitution of the Republic of Chile. If there is a breach of a worker’s privacy, and that worker is part of a union, the union may apply some pressure on the employer to fulfil the Law. All means to control workers – including cybersecu - rity tools – must comply with respect for the funda - mental rights granted by the Political Constitution of the Republic of Chile, the right to privacy, a private life and the honour of workers. Therefore, control mechanisms are only allowed if they fulfil the follow - ing requirements: • They must necessarily be incorporated in the nor - mative text that the law establishes for the effect, that is, the Internal Regulations of Hygiene and Safety of the company, dictated in conformity with the law. • They may only be carried out by suitable means consistent with the nature of the employment rela - tionship. • The application of control mechanisms must be general, and the impersonality of the measure must be guaranteed (ie, it must not be discriminatory). • The dignity of the worker must be respected.
5. International Considerations 5.1 Restrictions on International Data Transfers
At present, the Law does not contain a specific provi - sion in respect of international data transfers. Howev - er, the transfer of personal data outside the jurisdiction may be deemed a use of data, for which authorisation
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