1. Introduction: MERCOSUR-EU Agreement and the legislation on Data Protection
As is well known, last year, after several rounds of negotiations, the agreement between Mercosur and the European Union on economic matters emerged. Said agreement included matters related to customs duties, exchange of goods and services, sanitary measures, intellectual and industrial property rights, SMEs, dispute resolution, among other issues of relevance to both blocks.
Among these issues, although not as an integral part of the text of the agreement, discussions related to the Protection of Personal Data were also included. Currently, the States of the European Union are governed by the General Data Protection Regulation, or by its acronym, the GDPR, which is mandatory since May 25, 2018. During her visit to Argentina, in July of last year, the European Commissioner for Justice, Consumers and Gender Equality Vera Jourova, spoke about the benefits that the regulation and harmonization of data protection legislation would bring to both blocs.
For sure the EU is at the forefront in this matter, and in order to enable the advancement of this agreement for both blocs and above all, for the MERCOSUR countries, it is necessary that their laws harmonize with the provisions and principles of the GDPR, as which would bring about a quantitative and qualitative leap towards respect for the individual rights of people, the self-determination of the person regarding the processing of their data on the internet and in files, the final recognition of data protection as a fundamental human right, among other conquests.
Nowadays, in the current global situation of the coronavirus pandemic that hits the whole world, the negotiations have stalled, since there are urgent issues to address regarding the countries that make up each block. However, it is noteworthy that the will to move forward is intact.
That is why is necessary to carry out a review of the situation in which the laws of the MERCOSUR countries are in relation to the Protection of Personal Data, and why it is almost mandatory to use this time to be able to adapt them to the required standards by the EU in order to finally reach the conclusion of the negotiations carried out at the time of carrying out the revision of the Agreement between the two trade blocs.
2. Country by Country: MERCOSUR-EU Agreement and the legislation on Data Protection
The law that regulates the protection of personal data in Argentina is Law 25326, enacted on October 4, 2000, and is currently in force.
This law regulates what pertains to the treatment of personal data, its classification, the principles that should govern its treatment, international transfer of data, the rights of its owners, and the resources and actions that they have both administrative as well as judicially to obtain the deletion, rectification, modification, addition and correction of the data found in files or databases, both public and private, and the obligations of the owners of said files or databases when collecting and processing personal data.
In Argentina, the enforcement authority regarding Personal Data and Access to Public Information is the National Agency of Access to Public Information, which has a secretariat that is in charge of regulating and supervising everything related to personal data and the compliance of the Personal Data Protection law, which is the National Office of Protection of Personal Data.
In 2018 a Bill was presented to amend the Data Protection law and bring it as closely as possible to the GDPR standards, but unfortunately, the bill lost parliamentary status this year.
In 2018 it was sanctioned the new Law on Personal Data Protection – No. 13,709 LGPD-. On August 26 the Brazilian Parliament decided that the suspension of its enforceability would not be extended, so it is the law that is currently in force in Brazil to regulate everything related to the protection of the personal data of natural persons, processed both within the borders of the country, and by foreign companies that process data of persons located in Brazil.
This law has many points in common with the European General Data Protection Regulation, establishing an adequate legal framework regarding the collection, processing, and storage of personal data in general and sensitive data in particular, as well as the obligations and responsibilities of those –processors and controllers- who collect, process, select and store personal data, and may be liable –in case of non-compliance with the provisions of the law-, to be sanctioned administratively, civilly and criminally.
Likewise, it establishes the rights of the holders of personal data to grant informed consent for the collection and processing of their data and to control access, correction, rectification, updating, anonymization, and deletion of their data that are contained in databases both public and private.
For this law, it is mandatory -in certain cases- the need to have a Data Protection Delegate, and the enforcement authority is the National Data Protection Agency of Brazil.
In Paraguay, the Protection of Personal Data is regulated not only in the country’s Constitution but is also based on Laws No. 1682/2001, 1969/2002, which amends the first one and Law 5542 / 2015.
This set of laws regulate, among other issues: the processing and treatment of personal data contained in files, records, and public and private databases. The collection, processing, and treatment of personal data is only allowed for scientific, economic, statistical, or marketing purposes.
However, the current legislation establishes nothing regarding the figures of the database administrator; but it does regulate obligations pertaining to those responsible for said bases. Nor does it make a distinction between processors and controllers. Nor does it establish any obligation to report data breaches or incidents that occur with personal data.
The international transfer of data and its regulatory framework is not established in the legislation of Paraguay.
Likewise, there is no authority in Paraguay that regulates matters relating to the Protection of Personal Data and compliance with the law.
Finally, although the law does not establish anything regarding the possibility of making claims before administrative or judicial entities for violation of Personal Data, the penalties are established by other regulations, which allow those whose data have suffered any violation the right to claim before civil or criminal justice the pursue of a compensation.
There is a bill presented to the Paraguayan Parliament in 2019.
In Uruguay, personal data is ruled by Law No. 18,331, amended by Law No. 19,670, whose regulatory decree 64/020 modified certain articles of the first-mentioned law.
The law regulates the following aspects: a) it establishes a sort of glossary with definitions pertaining to personal data and the principles applicable; b) it also regulates the registration of the databases of the entities that collect and process personal data, whether they are located in Uruguay or process personal data of persons residing in Uruguay -under certain circumstances-; c) Establishes for public and private entities the need to have a Data Protection Officer and its obligations and responsibilities thereof; d) the need to have the informed consent of the owner of the data to collect, process and treat said data; e) the international transfer of data, the cases in which it proceeds and the requirements to transfer data to third parties; f) the obligations of the person in charge and the administrator of the databases; g) In the event of personal data breached or incidents that occur with them, the collectors, processors and responsible of the databases has to give notice and take the necessary measures to minimize risks; h) administrative sanctions concerning non-compliance with the rules contained in the law, ranging from warning to imposition of fines.
The application authority in the field of Data Protection in Uruguay is the Regulatory and Control Unit of Personal Data.
In February 2020, Law 19,670 was regulated, which among other issues complements Law 18,331 in terms of: 1) the adoption by the person responsible for the treatment of technical and/or organizational security measures to avoid and/or minimize incidents and breaches that may occur with personal data; 2) the promotion of national and international standards on cybersecurity; 3) the documentation of such measures and the planning and impact assessment regarding Personal Data.
3. Conclusion: MERCOSUR-EU Agreement and the legislation on Data Protection
After having made a brief reference to the Agreement between the European Union and Mercosur and the current state of the negotiations, reviewing the legislative situation of some of the countries that make up this last regional bloc, the truth is that it is essential to have an adequate level of protection of personal data, especially due to the extraterritoriality principle generated by compliance with the provisions of the GDPR and the cross-border flow of data.
Today we are witnessing a new era in human rights, where digital self-determination is no stranger. Where the right to digital existence of people cannot be overwhelmed over other issues such as those of an economic nature. That existence must be protected against any kind of violation.
Likewise, it is necessary to harmonize the laws of both economic blocs, which pushes MERCOSUR to take all the necessary steps to adapt its laws and regulate this new human right as an imperative, in order to achieve safer agreements in pursuit of a conciliatory and protective globalization of this new right that appears today.
Finally, it is worth highlighting the position that countries such as Argentina and Uruguay have in terms of recognition by the European Union regarding the adequate level of protection that these countries ensure to Personal Data, which places them at the forefront in the region.
However, it is mandatory for Argentina to update its law in order to continue maintaining that position in the face of the constant requirements of a globalized world both materially and digitally.
By Marta Garcia
The European Union (EU) and the four founding members of sub-regional trade bloc Mercosur (Argentina, Brazil, Paraguay, and Uruguay) have been negotiating a free trade agreement (FTA) for the last 17 years as part of a broader Association Agreement between the two regions.
After a pause in the EU-Mercosur negotiations in 2012, these were re-launched in May 2016. Since then, there have been several rounds of negotiations, with the pace picking up in recent months.
The current EU proposal for the FTA comprises a chapter on intellectual property rights (IPR) covering standards concerning copyright, trademarks, designs, geographical indications, patents and plant varieties, as well as a section regarding IPR enforcement.
Regarding industrial designs, the EU proposal establishes in its Article 6.1 that the parties shall implement the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs (which establishes an international system – the Hague System – that allows industrial designs to be protected in multiple countries or regions with minimal formalities). Regarding the term of protection, under article 6.3 of the EU proposal, the duration of protection available shall amount to 25 years from the date of filing of the application. Additionally, article 6.6 establishes that a design shall also be eligible for protection under copyright law as from the date on which the design was created or fixed in any form.
The report from the 30th negotiation round in November 2017 states that the agreement section on designs was tentatively completed. However, the actual text in the final agreement will be a result of negotiations between the EU and Mercosur.
The chapter regarding patents states that the parties shall comply with the Patent Cooperation Treaty (PCT), of which neither Argentina and Paraguay norUruguay are yet part.
Out of the three non-PCT Mercosur members, as we previously reported here, only the Uruguayan Parliament is currently discussing its adhesion to the PCT.
Regarding Argentina, it is worth mentioning that a Memorandum of Understanding (MoU) on technical co-operation was signed by the European Patent Office (EPO) and the Argentine PTO (INPI) in May 2017, which was recently discussed during the visit of the EPO President BenoîtBattistelli to Argentina last February. One of the aims of the MoU is to encourage the use of the PCT system and raise awareness about its benefits.
Article 8.2 – Patents and Public Health – of the EU proposal’s IPR chapter expresses the EU’s commitment to the World Trade Organization (WTO) Doha Declaration on the Trade Related Aspects of Intellectual Property (TRIPS) and Public Health, stating the following:
“The Parties recognize the importance of the declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 (hereinafter referred to as the “Doha Declaration”) by the Ministerial Conference of the WTO. In interpreting and implementing the rights and obligations under this Chapter, the Parties shall ensure consistency with the Doha Declaration.”
Notwithstanding the above, the EU proposal text on IPR includes articles on patent term extensions and data exclusivity, probably two of the sections on which positions between the EU and Mercosur are farthest apart.
Articles 8.4 and 8.5 of the EU proposal establish extensions of the patent term to compensate for unreasonable delays in the grant of marketing approval of a medicinal product or a plant protection product.The period of extension is the period that elapses between the filing of the application for a patent and the first authorization to place the product on the respective market, reduced by a period of 5 years. There is no proposal of extension due to unreasonable delays by national patent offices in granting the patent.
Regarding data protection, Articles 10.2 of the EU proposal establishes that parties shall not permit any other applicant to market the same or a similar medicinal product, on the basis of the marketing approval granted to the party which had provided the results of pre-clinical tests or of clinical trials for a period of […] years (not specified in the proposal) from the date of marketing approval.
According to the report from the 28th negotiation round in July 2017, “some divergences of views remain, notably regarding the level of protection as compared to TRIPS and certain international Treaties of which Mercosur countries are not yet members. Mercosur noted their concerns on patents and regulatory data.” Additionally, the last published report from the 30th negotiation round in December 2017 states that “on protection of regulatory test data in patents, the EU tabled a revised proposal but positions are still apart.”
Check back to Moeller’s blog to see updates about any developments on this matter.