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Argentina Adopts New Data Protection Regulations for the Use of Do Not Call Registry and CCTV

The Argentinian Data Protection Authority (DPA) beefs up penalties to fight robocalls and unconsented-to video surveillance by enacting Do Not Call and CCTV regulations.

Because robocalls are cheap and efficient, they have become a quite popular form of advertising in Argentina. In order to curb the variety of abuses that can come from robocalling–such as deceptive and abusive marketing–Argentina is injecting into their regulatory regime penalty-driven regulations that will address the problems presented by robocalls. This will preserve their beneficial use while still complying with Argentina’s privacy law requirements. Specifically, the February 2015 sanctions regulation addresses the recently adopted national Do Not Call registry that was implemented at the start of this year.

To comply with the Do Not Call regulations, companies need to register and download the database of individuals who do not want to be called. If companies fail to do so, they can be subject to various serious fines of up to USD $12,000. Examples of serious breaches include the processing of personal data without the DPA registration or breach of the Do Not Call regulation in marketing campaigns (even if the caller is located abroad). Any international transfers in breach of the Data Protection Act and its regulations would be considered a more serious breach. Indeed, the DPA has already issued 60 enforcement notices based on this new sanctions regulation.

In February, the DPA also enacted a law regulating the use of closed-circuit television (CCTV) cameras for video surveillance in the private and public sphere. The new CCTV regulation requires data controllers to apply, if possible, notice and consent provisions to CCTV-related data processing. It also requires that a conspicuous sign be included for the purpose of informing the data subject of the name and domicile of the data controller, as well as where to exercise the data protection rights. Additionally, CCTV databases must be registered and the personal data collected shall not be used for any purpose incompatible with that which gives rise to their collection. It is important to note that some CCTV processing is exempted from consent, such as public government databases and processing data within private property for private purposes.

These regulations were enacted in an effort to round out and complete Argentina’s privacy legal framework.

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Are Your Robocalls Legal? Following Federal Law May Not Be Enough

Last week’s Seventh Circuit ruling in Patriotic Veterans v. State of Indiana  confirms that businesses should check both federal and state laws before using automatic dialing systems (ATDS) to deliver prerecorded or synthetic voice messages known as “robocalls”.

The Telephone Consumer Protection Act (TCPA) is a federal law that generally prohibits robocalls to residential telephone lines without the prior express consent of the party receiving the call.  However, calls that are not made for a commercial purpose, including calls made for political purposes, are exempt from the TCPA.

The TCPA contains a preemption clause that states “nothing in this section . . . shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits:

  • the use of automatic telephone dialing systems;
  • the of artificial or prerecorded or prerecorded voice messages;” (emphasis added)

Notably, the State of Indiana’s Automated Dialing Machine Statute imposes “more restrictive” requirements, because while it does have some limited exemptions, it does not contain the TCPA’s exemption for political calls.

In Patriotic Veterans, an Illinois based non-profit sought to make robocalls for political purposes across state lines to Indiana residents.  Not wanting to pay for the live callers that would be required under the Indiana law, Patriotic Veterans filed a complaint in federal court against the State of Indiana and the Indiana Attorney General, seeking a declaration that the Indiana law was, among other things, pre-empted by the TCPA.

The District Court agreed with Patriotic Veterans, holding that the TCPA preempted the Indiana statute and granting Patriotic Veteran’s request for an injunction against enforcement of Indiana’s law with respect to political messages, but stayed the injunction pending the appeal.

The Seventh Circuit Court of Appeals reversed.  The Court concluded that there was no express preemption in the statutory language because “the TCPA says nothing about preempting laws that regulate the interstate use of automatic dialing systems. Therefore, we must conclude that they are not preempted. The plain language of the text reinforced by the presumption against preemption prevents this court from looking any further[.]”  The Court further concluded that there was no implied preemption for two reasons: (1) the federal regulatory scheme is not so pervasive or dominant as to make clear that Congress intended to occupy the entire legislative field, and (2) it is possible to comply with both laws (even if inconvenient or expensive for Patriotic Veterans).

What Does This Mean for Businesses?

The ruling in Patriotic Veterans further confirms that mere compliance with the TCPA is not enough.  Courts are unlikely to strike down state laws that are more restrictive than the TCPA, so it is important for businesses that are developing a robocalling strategy to check the laws of the states where they plan to contact residents.  Any such strategy should include a plan to comply with both the TCPA and the applicable state law requirements.

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