Online Data Privacy Regulations in Chile and Australia: A Critical Review and Future Challenges
| Autor | Andrés Salas Retamal |
| Páginas | 259-291 |
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018), pp. 259-292
ONLINE DATA PRIVACY REGULATIONS IN CHILE
AND AUSTRALIA: A CRITICAL REVIEW AND FUTURE
CHALLENGES
Andrés sAlAs retAmAl*
Abstract
Privacy is still a right protected by international conventions and
some domestic laws. However, it seems that data protection is not
efcient in the Internet. Personal data presently has an increasing
economic value, due to the spreading new and affordable tech-
nology and profuse use of social media, the amount of personal
information available and generated is signicantly growing each
moment. Nonetheless, this easy-access technology provides several
challenges for the Law to preserve data protection. In the Inter-
net, it is difcult to enforce a practical legal framework, especially
to enforce the law and cross-border ow of personal information.
The discussion will be focused on a description of data protection
regimes in Australia and Chile, both legal frameworks, and a cri-
tical review, particularly in the online environment. Then we will
provide an overview of the international approach for cross-bor-
der personal data ow, the efforts for harmonisation and addres-
sing the necessity of data protection authorities with appropriate
faculties. Lastly, we will conclude that both Australian and Chilean
systems are not entirely efcient in the Inter net environment, and
address some proposals to improve these legal regimes.
Key words: Personal information, data protection, privacy, data privacy, data processing,
Internet.
1. INTRODUCTION
Privacy is a right protected by several international conventions or treaties.
In several international instruments, privacy is acknowledged as a statute law given
right or a constitutional right.1 Personal data is part of this right, as being informa-
tion that “identies an individual”.2
*1 (asalasretamal@g mail.com). Article received on May 19, 2018 and accepted for publication on
July 26, 2018.
1 See Universal Declaration of Human Rights, GA Res 217ª (III), UN GAOR, 3rd sess, 183rd plen mtg, UN
Doc A/180 (10 December 1948) Art 12; International Covenant on Economic, Social and Cultural Rights,
opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) Art 17;
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November
1950, 213 UNTS 221 (entered into force 3 September 1953).
2
JAckson and HugHes (2015), p. 6.
Andrés Salas Retamal
260
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018)
Given that personal data in Internet has high economic value,3 its protection
is increasingly challenging. The massive and constant use of social media daily
contributes a colossal amount of information,4 and actions in the Internet are not
necessarily private and anonymous,5 and the gigantic amount of personal data
processed online is a complex scenario for proper data protection.6 Consequently,
not everyone is condent about the security of their information on the Internet. In
Australia, only 40% of online users are “condent that privacy settings on websites
work”.7 In the US, Internet users are more concerned about web surveillance: 86% of
web users have taken different measures to “remove or mask their digital footprints”.8
Further, while Australia and Chile have different legal and judicial regimes, they
both share the need to adjust their legal data protection framework.9 For the purposes
of this work, its structure is the following: in the rst section, a brief description of
personal data, and its digital value will be provided. The following section presents
an overview of the data privacy regimes both in Australia and Chile, and how their
legal frameworks interact with the Internet. For both regimes, the discussion will be
narrowed to general personal data instead of special kinds of personal information.10
Two criteria for comparison will be used: ve general data protection principles as a
common standpoint for both regimes, and the challenge of law enforcement in the
event of data privacy breach, particularly on the Internet environment, concluding
that both regimes are weak with regards to data privacy. The next section seeks to
address such failure points based on three key issues: the international approaches for
cross-border data ow and the consequent need for harmonisation; and the necessity
of an authority with appropriate faculties to enforce regulations. Finally, we will
have concluded that both jurisdictions have insufcient data protection. However,
a global harmonized approach in data privacy and a proper domestic legislation
adjustment to the international standard will sufciently improve the right to privacy
with regards to personal data.
3 JAckson and HugHes (2015), p. 197.
4 In 2015, 72% of the adults in USA used Facebook, 28% Instagram, 25% LinkedIn, and 23%
Twitter. While users are constantly updating “status”, retweeting text and uploading pictures to
Instagram, a report of June 2015 informed that Facebook ad 1,49 billion monthly active users in the
world. sloAn and QuAn-HAAse (2017), p. 4.
5
JAy and HAmilton (2003), p. 645.
6 “The growing amount of data stored and used by rms can bring many benets to consumer s
[…] However, it also creates the risk of a data breach exposing large amounts of sensitive customer
information”. FinAnciAl system inQuiry (2014), pp. 4-55.
7
AustrAliAn communicAtions And mediA AutHority (2013), p. 1.
8
Pew reseArcH center (2013), p. 1.
9 The international community has addressed the need of adjustment of Australia and Chile’s data
protection regime, as detailed and explained in section 3 of this work.
10 Both jurisdictions have special rules for specic type of personal data, such as sensitive, nancial,
among others. For the purposes of this paper, we will focus only in the general personal information,
and provide only a few examples of special sort of personal data.
Online data privacy regulations in Chile and Australia: A critical review and future challenges
Volume 3 (2018) LATIN AMERICAN LEGAL STUDIES
261
2. PERSONAL INFORMATION AND ITS DIGITAL VALUE
Personal information (or personal data) is the information that “identies an in-
dividual”.11 Data protection (or data privacy) is the protection of individuals against
any possible unauthorised or misuse of their personal information by third parties.12
The use of personal data is called data processing.
On the Internet, users leave and generate colossal volumes of personal data.
This information is a mixture between the personal data provided by individuals
themselves,13 information provided by third parties,14 or the information generated
by the users’ web surng, called digital footprints. Digital footprint is the trace, trail
or “footprints that people leave behind online”.15
Digital footprint is the main content of “big data”, which includes stores with
high volumes of data, and high speed on the amount of input and output data from
these banks, from a wide variety of types and sources of information.16 This immense
amount of data depends on small data inputs, such as information about people,
places, sensors, cell phones, click patterns, among others. The data is generated by
the everyday activities, online activities, spending habits, and communications of a
given individual.17 The idea of big data is to collect enough information about the
behaviour of an individual and, with the right analytical tool, nd connections and
correlations among this information.18 The result of this technique is to create accu-
rate predictions about the future without (necessarily) the knowledge of the individual.
Personal data has high economic value. The information delivered by the Inter-
net users to the websites (voluntarily or unbeknown), and the personal data generated
(like big data) is the contemporary “new oil”.19 Personal data is the key component
of our digital economy.20 Access to (most of) web pages is free for the Internet user,
and corporations make prot through advertisement. Personal information is cru-
cial to direct such advertisement accordingly to people’s interests based upon their
11 JAckson and HugHes (2015), p. 6.
12
dAvArA (2015).
13 For example, when lling up online forms to purchase, contract a service, navigate on a given
website, or completing surveys.
14 Such as nancial entities or big companies.
15
AustrAliAn communicAtions And mediA AutHority (2013), p. 14.
16
JAckson and HugHes (2015), p. 198.
17
JAckson and HugHes (2015), p. 199.
18
lermAn (2013), p. 57.
19 The term “data is the new oil” has been used since 2006 in different occasions by several individuals.
It appears that the rst statement with these terms was made by Clive Humby, mathematician from
United Kingdom. He used the term in the Senior Marketer’s Summit of the Association of National
Advertisers, in Kellog School, in 2006. PAlmer (2006).
The Australian Communication and Media Authority attributes this term to the World Economic
Forum. Australian Communications and Media Authority (2013), p. 1.
20
JAckson and HugHes (2015), p. 197.
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