Monthly Archives: May 2023

CorralRosales > 2023 > May

Beginning of the sanctioning regime of the Organic Law on Personal Data Protection

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On May 26, 2021, the Organic Law for the Protection of Personal Data (the “LOPDP“) entered into force with its publication in Official Gazette Supplement 459. However, the sanctioning regime began to apply as of May 26, 2023, as established in the First Transitory Provision: “(the…) provisions related to the corrective measures and the sanctioning regime will enter into force two years after the publication of this Law in the Official Gazette”.

In the course of this time, whoever oversees the processing of personal data had to adapt its activities to the precepts established in the LOPDP, whose purpose is to protect the fundamental rights and freedoms of data owners and their right to the protection of personal data.

The process of adapting to the new information processing depends on the type of company (public entity, multinational, SME, self-employed, among others) and, above all, on the types of data processed (health data, credit data, data of children or adolescents).

The main obligations of companies are summarized below:

1.    Scope of application of the LOPDP:

•    The law is applicable to any processing of personal data, whether in physical or digital format, including its automation and any additional use.

•    Both legal and natural persons, public or private, must comply with the obligations imposed by the LOPDP.

2.    Individuals involved in data protection:

•    The controller is the person, natural or legal, who decides on the purpose and treatment of the personal data collected.

•    The processor is the person who provides a service to the controller that involves the processing of personal data in the name and on behalf of the Controller.

•    The data subject is the natural person whose data is subject to processing, such as name, surname, ID card number, health data, religion, credit data, gender, ethnicity, fingerprint, among others.

3.    New obligations:

The LOPDP obliges to include new warnings, for example: the legal basis for data processing or data retention periods. In addition to the following:
•    Consent: this must be a free, specific, informed, and unequivocal manifestation. This implies that the data controller must be able to prove that it had the consent of the data subject.

•    Relationship between data controllers and data processors: describes the type of contract between the data controller and the data processor. It specifies the obligations of both parties for the provision of the agreed service.

•    Risk analysis: those who process data must carry out a risk analysis on the processing of data, before implementing its use, to minimize the impact, it may have on data subjects.

•    Rights: provides data subjects with a series of rights to ensure data protection, such as: access, rectification, erasure, opposition, portability, not be subject to a decision based solely or in part on automated assessments, among others.

•    Data Protection Officer (“DPO”): those who process personal data, depending on the volume, category, and treatment of data, must appoint a DPO who will be the one to carry out a permanent and systematized control of personal data.

4.    Data Protection Authority (“DPA”):

The LOPDP provides for the creation of the Superintendence of Personal Data Protection, which will oversee the correct application of the law.

5.    Corrective actions:

The DPA shall take corrective measures to prevent further infringement. These measures could be:

•    Cessation of processing.
•    Erase of the data.
•    Imposition of technical, legal, organizational, or administrative measures.

6.    Sanctioning measures:

Establishes an administrative regime whereby there are minor and major offenses. The fines are based on the volume of business:
•    Minor offenses: are sanctioned with fines that go from 0,1% to 0,7%.
•    Major offenses: are sanctioned with fines that go from 0,7% to 1%.

So far, the regulation to the LOPDP has not been issued, nor has the DPA been appointed. However, as the sanctioning regime is already in force, those who use personal data must implement data processing policies and data protection measures to avoid fines.

CorralRosales has formed a team specialized in data protection to provide legal advice and consulting. LOPDP compliance audits are performed, as well as documents related to personal data protection.

Rafael Serrano, asociado de CorralRosales, con traje y corbata. En el fondo, una parte de Guayaquil (Ecuador)

Specialist in Data Protection Law
Rafael Serrano, associate at CorralRosales
rserrano@corralrosales.com
+593 2 2544144

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NOTE: The above text has been prepared for informational purposes. CorralRosales is not liable for any loss or damage incurred as a result of acting or failing to act on the basis of the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm in Quito / Guayaquil, Ecuador.

CORRALROSALES

Ecuador’s PDPL: challenges of the entry into force of its sanctioning regime

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DETAILS

DATE: 23-05-2023

PROFESSIONALS INVOLVED IN THE ARTICLE:

–Rafael Serrano

MEDIA:

– IAPP

The entry into force of the EU General Data Protection Regulation in May 2018 prompted the creation and adaptation of different regulations on personal data protection worldwide. Ecuador was no exception, and on May 26 2021 the Organic Personal Data Protection Law (PDPL), the first law in Ecuador focused exclusively on regulating and guaranteeing personal data protection, entered into force.

Two years later, as stipulated by law, the corrective measures and the sanctioning regime have come into force. Our associate Rafael Serrano writes on this matter in IAPP.

Serrano points out that “as of May, and since the publication of the PDPL, and private entities have been obliged to undertake adaptation processes that have meant significant challenges for them, which have deepened due to the lack of regulation for the application of the PDPL, as well as the lack of creation and designation of a data protection authority”.

These difficulties, he says, “added to the technical, legal and procedural actions the regulated entities adopted, have undoubtedly generated great uncertainty regarding compliance with and application of the PDPL”.

As of May 26, according to Serrano, “a new stage in the protection of personal data in Ecuador will begin. The risks can be significant, as fines can reach up to 1% of the fiscal year’s turnover immediately before the fine’s imposition”.

He states that the law generates a new regulatory regime that positions Ecuador at an international level since, even with all the risks mentioned above, it also presents great opportunities.

“Compliance with this regulation will improve processes and information systems, and help Ecuadorian companies strengthen their corporate images in the international market. In this sense, companies must begin to mitigate risk by implementing certain documents and security measures”.

If you want to read the complete article, click here.

Constitutional opinion of the veto to the bill that reforms the Organic Law of Regulation and Control of Market Power

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Recorte de "The Legal Industry Reviews", el artículo escrito por Christian Razza

DETAILS

DATE: 10-05-2023

PROFESSIONALS INVOLVED IN THE ARTICLE:

–Christian Razza

MEDIA:

– The Legal Industry Reviews

On January 21, 2023, President Guillermo Lasso Mendoza filed a partial objection for unconstitutionality to the “Draft Organic Reformatory Law of Various Legal Bodies, for the Strengthening, Protection, Impulse and Promotion of Popular and Solidarity Economy Organizations. Artisans, Small Producers, Micro-enterprises and Enterprises” (“Bill”). Our associate Christian Razza writes about it for The Legal Industry Reviews (LIR).

Razza recalls that on March 1, 2023, the National Assembly informed the Constitutional Court (“Court”) of the presidential objection, so that it may issue the respective opinion on the constitutionality of this norm that reforms the Organic Law of Regulation and Control of Market Power (“LORCPM”).

In this regard, it adds that on March 30, 2023, by means of Opinion No. 2-23-OP/23, the Court resolved the partial presidential objection on grounds of unconstitutionality, declaring the objections filed against:

1. Conferring to the Superintendency for the Control of Market Power (“SCPM”) the competence to regulate the modification or elimination of public aid and pricing policies.

In this regard, Razza emphasizes that “the Court pointed out that these provisions contravene Articles 132 paragraph 1, 147 paragraph 3 and 213 of the Constitution of the Republic of Ecuador (“CRE”) since the creation, definition, elimination and modification of any type of pricing policies and public aid are not within its competence”. 

2.Granting the SCPM the power to issue recommendations on the modalities of competition in the markets of a binding nature only for public entities.

Razza points out that “paragraph 17 of the second reforming provision of the Bill allows the SCPM to review in a binding manner the pricing policy implemented by the Executive Branch”.

Therefore, the Court points out that “the Court states that granting the SCPM’s recommendations the ‘binding’ character implies that it is attributed a competence that exceeds the provisions of Article 213 of the CRE for the cases of the superintendencies. Consequently, it resolves that the recommendations coming from the SCPM must have only an optional character”.

If you want to read the complete article, click here.

Dissolution of Congress

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In application of the powers conferred by Article 148 of the Constitution, the President of the Republic issued Decree No. 741 (the “Decree”) whereby the President dissolves Congress and ordered the National Electoral Council to call for legislative and presidential elections to complete the current respective terms.

The aforementioned powers allow the President to dissolve Congress when, in his opinion, there is a “serious political crisis and internal commotion”. It does not require the prior determination of the Constitutional Court and may be exercised only once during the first three years of office.

The National Electoral Council, within a maximum term of 7 days after the publication of the Decree, will call for legislative and presidential elections for the remainder of the current term, which ends in May 2025.

To sum up,  i) the President has made use of a constitutional power expressly contemplated in Article 148 of the Constitution; and, ii) in approximately 6 months a new President and Vice President of the Republic and members of Congress will take office, for a term to end in May 2025. In the meantime, the President remains in office and may issue economic decree laws, with the approval of the Constitutional Court.

Xavier-Rosales-abogados-ecuador

Leader of the Competition, Corporate and M&A areas
Xavier Rosales, partner at CorralRosales
xrosales@corralrosales.com
+593 2 2544144

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NOTE: The above text has been prepared for informational purposes. CorralRosales is not liable for any loss or damage incurred as a result of acting or failing to act on the basis of the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm in Quito / Guayaquil, Ecuador.

CORRALROSALES

Ecuador China Free Trade Agreement

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On May 10 and 11, 2023 – due to the time difference – Ecuador and China signed a Free Trade Agreement focused on the commercial exchange of goods and e-commerce.

During 2022 Ecuador exported to China around US$5,823 million in products such as shrimp, lead and copper concentrate, other mining products, bananas, balsa, wood, cocoa, among others. China exported to Ecuador approximately US$6,353 million in products including metal products, vehicles, automobiles, cell phones, computers, among others.

Once the treaty enters into force, Ecuador’s products will have access to a market of 1.4 billion consumers and will be subject – for the most part – to immediate tariff relief. Ecuador’s tariff relief for Chinese products is subject to percentages and deadlines depending on the goods. With this, Ecuador will compete with countries such as Peru and Central America that already have a treaty with the Asian country.

The treaty will become effective once it complies with the respective legal process, which includes the pronouncement of the Constitutional Court, approval by the National Assembly, and publication in the Official Gazette.

In the following link you can review the complete text in Spanish:
https://www.produccion.gob.ec/wp-content/uploads/2023/05/FTA-ECUADOR-CHINA-SPANISH.pdf