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The sanction in Argentina against Facebook for changes to the privacy policy of WhatsApp and to its terms and conditions, it offers clues in Spanish and in a Latin American context on how to monitor and sanction a company in the digital economy with the legal tools available and without resorting to the American and European experiences, with their respective contexts and language barriers. .

1. abusive clauses. First, the facts. Argentina’s consumer protection office fined Facebook for imposing “abusive clauses” on WhatsApp users and restricting their rights as consumers. WhatsApp is a subsidiary of Facebook (today Meta Platforms Inc.) that offers instant messaging services on a global scale.

With the changes to your terms of service and your privacy policy January 2021, WhatsApp limited its liability for damages, failed to comply with the duty to provide true, clear and detailed information to its users, and collected personal data without determining its object (purpose) or its scope, the office resolved.

2. Terms and Conditions. It must be borne in mind that this is a case sanctioned from the consumer protection regime and not from the protection of personal data, although it also involves issues related to the Privacy.

“Consumers contract directly without the possibility of negotiating” and accept “forms reproduced in series, with clauses drafted unilaterally by the supplier of the thing or service”, it reads in the resolution of the National Directorate for Consumer Defense and Consumer Arbitration (DNDC), dependent on the Ministry of Productive Development of Argentina. The office acted on the principle of “granting greater protection to the weaker party in commercial relations”.

3. citizen complaint. The investigation of the consumer office was produced by the complaint of Johanna C. Faliero, an expert lawyer in computer law and privacy, who is not satisfied with the changes in WhatsApp in 2021. The resolution, among other things, imposes a barrier to the “excessive use of our personal data,” Faliero told me interviewed on the subject. “In short, what is being changed here is the fact of doing things wrong, that is, unrestrictedly authorizing the owners of the applications to do anything in the way that occurs to them, absolutely capricious and contrary to the regulations that we we have,” he said.

Facebook She did not appear before the authority during the processing of the complaint, despite the fact that she was called to present her position on the matter (“discharge and evidence”).

4. A scratch for a beast. The resolution includes an economic sanction against Facebook of 5 million Argentine pesos (the equivalent of almost 50,000 dollars or almost one million Mexican pesos). Those 5 million Argentine pesos are an insignificant amount for the finances of the social media giant, which only to entertain and influence legislators and politicians in Washington spent $20 million in 2021 or the equivalent of 2,100 million Argentine pesos.

For Faliero, author of the books The Right to Anonymity (2019) and The Protection of Personal Data (2021), the amount of the penalty may be ridiculous, but its value lies in the possibility of damaging the reputation of Facebook Y WhatsApp and provoke reluctance among consumers to use their services.

5. Spanish speaking. The sanction of the Argentine consumer office —which will be appealed by Facebook, as confirmed to me by a spokesman for Meta— It is an exercise of surveillance and punishment in the Spanish language, which can be replicated by the authorities of other Latin American countries, which share a common vision on human rights through the Inter-American Human Rights System, and which have approximate traditions on the defense of consumers.

I insist on the issue of language because regulatory exercises in Latin America are quite scarce when it comes to companies and services in the digital economy, dominated mainly by US entities such as Facebook, Google, Amazon, Microsoft The Apple and with the English language as a priority understanding tool.

The Argentine example should encourage other national authorities to break the fixed idea that companies based outside their jurisdictions are exempt from legal compliance where they offer their services. Can you imagine the prophet defending ourselves like this?

Jose Soto Galindo

Editor of El Economista online


Journalist. Since 2010 he edits the digital version of El Economista in Mexico City. Master in Transparency and Protection of Personal Data from the University of Guadalajara. He has a specialization in telecommunications and information technology law. His personal blog is Economicon.

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