On May 8, 2023, the Consumer Defense Commission unanimously approved the report recommending the persistence of the draft law that amends Law 29571, the Consumer Protection and Defense Code, with the aim of regulating spam or unsolicited commercial prospecting activities with a more restrictive prohibition. The Executive Branch objected to this project because it does not take into consideration the freedom of enterprise and the principle of normative coherence, particularly the Personal Data Protection Law.
From the analysis of the initiative, it can be observed that there is a strong intention to severely restrict the initial contact of the supplier with the consumer, which would only be possible when the consumer contacts the provider to provide their authorization. Thus, the modification of section d) would imply that suppliers/companies could not call or make initial direct contact with the consumer to obtain consent for advertising or commercial purposes, which, consequently, would impact their commercial prospecting actions.
| Consumer Protection and Defense Code | Bill Proposal 2942/2022-CR, 3131/2022-CR and 3541/2022-CR |
| Article 58.- Definition and scope
58.1 The right of every consumer to protection against aggressive or deceptive commercial practices implies that providers cannot engage in practices that significantly undermine the consumer’s freedom of choice through actions such as harassment, coercion, undue influence, or fraud. In this regard, all commercial practices that involve the following are prohibited: e. Using call centers, telephone calling systems, sending text messages to mobile phones, or sending mass electronic messages to promote products and services, as well as providing telemarketing services, to all telephone numbers and email addresses of consumers who have not given their prior, informed, explicit, and unequivocal consent to the providers of such goods and services for the use of this commercial practice. This consent can be revoked at any time in accordance with the regulations governing the protection of personal data. |
Artículo 58.- Definición y alcances
58.1 The right of every consumer to protection against aggressive or deceptive commercial practices implies that providers cannot engage in practices that significantly undermine the consumer’s freedom of choice through actions such as harassment, coercion, undue influence, or fraud. In this regard, all commercial practices that involve the following are prohibited: e) Using call centers, telephone calling systems, sending text messages to mobile phones, or sending mass electronic messages to promote products and services, as well as providing telemarketing services, to any consumer is prohibited.The only exception to this prohibition is the sending of commercial or advertising communication to a consumer who directly contacts the provider and expressly authorizes, expressing their free, prior, informed, explicit, and unequivocal consent, to be contacted through a telephone number, email address, or any other analogous means of communication. This consent can be revoked at any time in accordance with the regulations governing the protection of personal data. Violation of this prohibition constitutes a very serious offense sanctioned by this code. |
The initiative will be debated by the national representation in the following plenary sessions.
On the other hand, it is worth recalling that the General Directorate of Transparency, Access to Public Information, and Personal Data Protection has previously expressed its position regarding the first contact of the provider.
In Advisory Opinion No. 12-2019/DGTAIPD, the Authority stated that prior and express consent of the data subject is required for commercial prospecting communication. It is possible to have a first contact if the data has been lawfully obtained and aimed at obtaining consent. If consent is not obtained, the person cannot be contacted again. Subsequently, in Advisory Opinion No. 01-2022-DGTAIPD, the Authority clarified that the first contact is not based on the product or service but on the purpose.