mHealth or “telemedicine”
One of the remarkable changes that technology has brought in recent times is mHealth. This technology gives the possibility -among others in the field of health- of being able to be assisted by a doctor without the need to physically attend any hospital, directly from the comfort of home, having only an electronic device with the possibility of internet connection. This is what is commonly known as “telemedicine”, which is developed through applications.
However, it must be taken into account that between these mobile apps and the user there is an interesting flow of personal data, and more precisely of sensitive data, as represented by access to the patient’s medical history. That is why it is necessary that these tools are accompanied by specific regulation of the State, in order to avoid the violation of user data, e.g.: encryption of information.
The implementation of these applications also involves several actors, mainly: companies that provide health services, the Ministry of Health, the agencies that regulate health issues, and those that are in charge of protecting personal data.
For example, in the United States, the FDA is the body in charge of supervising the implementation and operation of mobile applications intended to offer health services, as long as they comply with a series of pre-established requirements and standards and depending on the function that they develop -diagnosis, treatment, access to clinical information, etc-.
Lastly, it is essential to point out that, in addition to the control that the corresponding institutions must carry out regarding the data that is processed through mHealth Devices, these apps must not only comply with approval standards as such but also with regulations and standards that protect private data in general and sensitive data in particular, highlighting the following measures:
1) Risk assessment analysis;
2) Pseudonymization and encryption of personal data.
3) The ability to guarantee the permanent confidentiality, integrity, availability, and resilience of the treatment systems and services.
4) The ability to restore availability and access to personal data quickly in the event of a data breach;
5) A process of regular verification, evaluation, and assessment of the effectiveness of technical and organizational measures to guarantee the safety of the treatment.
Protection of personal data is an issue that has gained relevance in the last year in all parts of the world. An example of this phenomenon is the implementation of the General Regulation of Personal Data (GDPR) in the European Union in 2018 or the new laws, modifications to the current ones or judicial decisions on the matter, that Latin American countries began to implement to be in accordance with the community regulations.
In this respect, in a recent judicial ruling, the Supreme Court of Justice of the Nation of Mexico (SCJN) analyzed the pertinent period to keep personal data within the Law for the Protection of Personal Data in Possession of Obligated Subjects of the State of Guerrero and determined the invalidity of a portion of the regulations since it established generic terms for the preservation of personal data.
In this sense, the Court understood that this generic term was in violation of the right to the protection of these data, since the treatment of them requires individualization in each specific case, so to decide what deadlines to apply should be attended to the applicable provisions in the matter in question.
As a result of the aforementioned resolution, the Supreme Court ordered the Institute of Transparency, Access to Information and Protection of Personal Data of the state of Guerrero to issue, within 90 days, the guidelines to which the general law of the corresponding subject refers. Finally, it is important to note that this decision was applied to other states such as Jalisco, Michoacán and Sinaloa, in which the Institute of Transparency, Public Information and Protection of Personal Data was notified to adapt its regulations to this criterion, since it was improperly extended the term to one year, in the local law.
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The Protection of Personal Data is a fundamental right of citizens of inexcusable application by any type of organization, both public and private. In this sense, companies, professionals or any type of organization collect and process data from natural persons (clients, patients, employees, etc.) and, therefore, they are responsible for the security and protection of such data.
In this sense, after the approval of the New General Regulation of Data Protection (RGPD) – 2016 / 679- in the European Union in 2016, with its corresponding entry into force on May 25, 2018, which has repealed Directive 95/46 / EC, the rules of the game have changed not only for the EU countries and their institutions, both public and private, but the wave of updating of the national regulations on this issue has reached Latin America, specifically we refer to countries such as Argentina, Uruguay, Chile and Brazil.
In the case of Argentina, it recently submitted a bill to Congress that would replace the Personal Data Protection Law No. 25,326, which has been in force since 2000, in an attempt to align the country’s data protection standards. with the GDPR. The bill includes the requirements for notification of mandatory non-compliance, the appointment of a DPO in certain circumstances, the right to data portability and the right to be forgotten, as well as the new liability standards. Likewise, through Resolution 159/2018, published in the Official Gazette dated December 5, 2018, the modification of the authority for the protection of personal data was ordered, and so far it has been the NATIONAL DIRECTORATE FOR THE PROTECTION OF PERSONAL DATA. With the entry into force of this resolution this year, the new Argentine authority will be ACCESS TO PUBLIC INFORMATION AGENCY.
In this matter of Chile, it has a law dedicated to data protection, Law No. 19.628 on Protection of Privacy, which was published in the Official Gazette on August 28, 1999 (the Law). Currently there is a bill in the Senate, which is about to be approved and would significantly modify Law No. 19,628 on Protection of Personal Data, in order to increase the protection of privacy to comply with international processing standards. of data and the guidelines of the Organization for Economic Cooperation and Development (OECD). It is important to highlight the fact that the Chilean data protection authority was created relatively recently in the year 2017.
With regard to Uruguay, in August of the year 2018, it has adopted a decree that demands that the majority of data controllers register their databases with the Protection and Supervision and Data Supervision Authority.
Finally, Brazil is the Latin-American country that has carried out the most radical change on this matter. On August 14, 2018, Brazil enacted the law “Lei Geral de Proteção de Dados Pessoais (LGPD)”, the first general privacy law in the history of the nation. The aforementioned law, which will become effective on February 16, 2020, is very similar to the GDPR, even in its expansive definition of personal data and its strong emphasis on both the rights of interested parties and the requirement of legal bases for processing. of personal data. This marks a very important milestone in this matter for Brazil, since previously it did not have an appropriate law to regulate the protection of personal data.
In conclusion, and as we mentioned at the beginning of this article, this legislative activity in South America follows a wave of efforts to modernize data protection laws worldwide, which includes other latitudes such as Israel, Japan and South Africa. Therefore, it is to be expected that during the course of 2019 new countries will adhere to this data protection movement.