New Argentine requirements for direct marketing “opt outs”

Jeremy Phillips

The Office for National Protection of Personal Data (Dirección Nacional de Datos Personales), Argentina, has passed Disposición 4/2009, a regulation regarding direct marketing communications which involve the use of personal data contained in an advertiser’s database of personal data.

Law 25.326 (known as the “Protection of Personal Data Law” or the “Habeas Data Law”) defines “personal data” as information of any kind which refers to a certain or a determinable individual or legal entity. Most frequently, the personal data used by a direct marketer is the name of the recipient, his email, his real address, and his phone number.

The objective of this regulation is to inform the owner of personal data that he can “opt out” of being in that direct marketer’s database, as is established in art. 27.3 of the Protection of Personal Data Law. In particular, the new requirements are the following:

(1) The sender shall incorporate in the communication message:

(a) A notice which informs the owner of the personal data about his “opt out” rights to be removed or blocked –in whole or in part- from the sender’s database;
(b) A description of the mechanism which the sender will use to block or remove the data in case the recipient opts out; and
(c) A transcription of article 27.3 of Law 25.326 and the third paragraph of article 27 of Decree 1558/01, Annex I (the related “opt out” provisions).

(2) When the communication was sent without a prior request or consent from the owner of the personal data, the sender shall highlight that the communication is an advertisement. Additionally, when the communication is sent through email, the term “advertisement” (“publicidad”) shall be inserted in the head of the email.

(3) The sender shall verify that the mechanism for blocking or removing that is described in the advertisement will be capable of managing all the “opt out” requests from all recipients.

The regulation is effective from 18 March 2009. Although the new requirements might be more effective in achieving an educational purpose regarding recipient’s rights than in enforcing the “opt out” rights, the regulation is a well-intentioned measure.

Source: Celia Lerman (Mitrani, Caballero & Ojam Abogados).

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