|
SUSCRIBETE BOLETIN

¡Manténte informado!

Entérate de las últimas noticias legales en Ecuador explicadas por nuestros expertos.

.

+ 593 2 29 86 456
INFO@TZVS.EC

NEWS AND BULLETINS

DATA PROTECTION AS A COMPETITIVE ADVANTAGE: HOW ECUADORIAN COMPANIES CAN TRANSFORM LEGAL COMPLIANCE INTO BUSINESS OPPORTUNITIES?

By Tobar ZVS en DATA PROTECTION .

Every January 28th, the world celebrates Data Protection Day, an opportunity to reflect on the importance of safeguarding privacy in an increasingly digitalized environment. In Ecuador, this topic has gained significance since the enactment of the Organic Law on Personal Data Protection (LOPDP), which came into force in May 2021 and established a regulatory framework for the collection, processing, storage, and transfer of personal data. However, beyond fulfilling a legal obligation, companies have the opportunity to turn compliance into a strategic advantage.

The Legal Framework: A Foundation for Trust.

 

Ecuador’s LOPDP is inspired by international regulations such as the European Union’s General Data Protection Regulation (GDPR), which seeks to ensure that citizens have control over their personal information. Among its most important provisions are:

 

  • Consent: Companies are required to obtain explicit authorization before processing personal data.

  • Data Subject Rights: These include the rights to access, rectify, delete, and port their information.

  • Security Measures: There is an obligation to implement security measures, such as access controls and encryption, to protect stored data.

 

Non-compliance can result in sanctions, including financial penalties and suspensions of data processing, as well as social sanctions such as reputational damage, which can be even more challenging to reverse.

The Challenge for Companies: Comply and Transform.

 

For many companies in Ecuador, implementing this regulation may seem like a complex challenge, especially for small and medium-sized enterprises (SMEs) with limited resources. However, the key lies in adopting a practical approach that allows for compliance with the regulation while simultaneously transforming this compliance into a tool to gain customer trust and improve market position.

Practical Solutions: Comply and Leverage the LOPDP.

 

  1. Initial Diagnosis: Evaluate the current situation in terms of data management. Questions such as: What data is collected? For what purpose is it used? What security measures exist? are part of a basic audit that will help identify gaps and prioritize actions.

  2. Policy and Procedure Design: A well-drafted privacy policy is essential. It should explain the data collected, the purpose, and the protection measures implemented. Additionally, it should establish a clear procedure for data subjects to exercise their rights.

  3. Training: Regulatory compliance largely depends on the people handling the data. Designing training programs to help the team understand the importance of protecting personal data is crucial. Preparing internal workshops and practical guides can make a significant difference.

  4. Investment in Accessible Technology: A large budget is not necessary to implement protection tools. Simple actions like encrypting sensitive data and establishing access controls can be effective.

  5. Incident Management Plan: It is important to have a response plan for incidents, such as cyberattacks and data breaches. This includes having a protocol to identify, contain, and mitigate the impact, notify the authority and data subjects, where applicable, and learn from past mistakes to prevent recurrence.

 

Complying with the LOPDP is not just about avoiding fines; it is a strategic opportunity that can transform regulatory compliance into a significant competitive advantage. By adopting robust data management practices, companies ensure legal compliance and strengthen customer trust, an invaluable asset in today’s market.

Good data management demonstrates a commitment to privacy and information security, opening doors to new markets and business opportunities. In an environment where trust is increasingly scarce, companies that prioritize data protection can differentiate themselves from the competition and establish themselves as leaders in their sector, consolidating data protection as a transversal value of the organization.

© TobarZVS 

This publication contains information of general interest and does not constitute legal opinion on specific issues. Any analysis will require legal advice from the Firm.

RELATED ARTICLES

THE GENERAL REGULATION OF THE PERSONAL DATA PROTECTION LAW WAS ...

On November 6th, 2023, the President of the Republic issued the General Regulation of the Personal Data Protection Law (referred to as “LOPD”).

The Regulation implements the rules for the LOPD application, among whose provisions we highlight the following:

  1. The incorporation of definitions for the Law application, such as:

    Family or domestic activities: The ones carried out in an environment of friendship, kinship, or an inner circle, on private property, and which do not have commercial purposes.

    Large-scale processing: This occurs on a large amount of data, of numerous data subjects in various geographical locations, which represents, therefore, a threat to their rights and freedoms.

  2. Data protection rights: For the exercise of the data subject’s rights, they must include a minimum of information that allows the controller to identify the data subject and their personal data. Once the request has been completed, the controller will consider the data subject’s request.

  3. Security breach notification: If a data security breach that represents a risk to personal data rights occurs, the Controller must notify the Data Protection Authority and the Telecommunications Regulation and Control Agency. In addition, the holder must be notified with the same information.

  4. Data protection impact assessment: In order to determine the enforceability of a data protection impact assessment, the Controller could submit a query to the Data Protection Authority. In addition, the Regulation details the requirements for the assessment, which include the outline and purpose of the processing, the fulfillment of necessity and proportionality criteria, the risk evaluation, and the precautionary measures for data protection.

  5. Joint responsibility: If two or more data Controllers operate (joint Controllers), they must conclude an agreement that restricts their obligations, which must be available to the Data Protection Authority, as well as to the data subjects. Therefore, a differentiated sanctioning regime is implemented according to the scope of their responsibilities.

  6. Record of activities: Controllers with 100, or more, employees shall keep a record of the actions related to the processing activities under their responsibility. The Regulation establishes the requirements for such a registry.

  7. Relationship between Controller and Processor: The relationship between the data Controller and its Processors must be established by means of a written contract, detailing the object, duration, nature, purpose, personal data category, identification of the data holders, and the obligations and guidelines related to the processing activities.

  8. Data Protection Officer (DPO): The DPO shall oversee the Controller and Processor obligations, independently. Either an employment or provision of services contract might be concluded.

    The voluntary appointment of a DPO by Controllers or Processors that are not included in the mandatory appointment will be considered a mechanism of good practice.

  9. DPO for business groups: Business groups may appoint solely one DPO, provided that the activities can be carried out without any conflict of interest.

  10. International Transfer: The Data Protection Authority will determine the countries, organizations, and legal entities that have equivalent to or higher protection standards for data transfers than those established in the Law, international transfers to such countries, organizations, and individuals will not require prior authorization.

    The Regulation establishes the requirements to be complied with for the transfer of data to countries that have not been qualified by the Data Protection Authority, as well as for the authorization of binding corporate rules.

    In addition, in the National Data Protection Registry the following information shall be registered: the country of the recipient, data categories, the transfer purpose, identification of the recipient, transfer mechanisms, and the exception criteria, if applicable. 

The Regulation will enter into force as from its publication in the Official Gazette.

Contacts: Hipatia Donoso (hdonoso@tzvs.ec), Ana Mogollón (amogollon@tzvs.ec).

© TobarZVS 

This publication contains information of general interest and does not constitute legal opinion on specific issues. Any analysis will require legal advice from the Firm.

By ZVS Tobar in DATA PROTECTION

PROTECTION OF PERSONAL DATA: WHAT ARE THE KEY ASPECTS? ...

In our interconnected world, companies manage and transfer large amounts of information, which is why the protection of personal data is now more important than ever. Data protection is a comprehensive set of strategies, practices and technological measures designed to safeguard an individual’s identity and information from various threats, such as cyber attacks, data breaches, unauthorized access and accidental loss. In this sense, there are several key tools for data protection, such as:

  1. Data encryption:

Encrypting data ensures that even if information is intercepted, it remains unreadable unless you have the appropriate decryption key.

  1. Access controls:

Implementing controls for access ensures that only people who are authorized to do so can access specific data, limiting the risk of unauthorized access.

  1. Periodic auditing and supervision:

Continuous monitoring and regular audits help detect and respond promptly to any unusual activity or potential security issue.

  1. Backups:

Backing up data on a regular basis ensures that, in the event of data loss or system failure, information can be restored to its most recent state.

  1. Security and training policies:

Establishing clear security policies and providing training to consumers, employees and other stakeholders helps to create a culture of awareness and responsibility regarding the protection of data.

The implementation of these tools produces the adequate management of personal data that directly impacts stakeholders, given that the company will:

  1. Maintain customer trust:

Consumers are becoming increasingly aware of the importance of their data; customers are more likely to interact with companies that care about the security of their information. Companies that prioritize data protection prove their commitment to safeguarding their customers’ information, which, in turn, builds trust and loyalty.

  1. Care about legal compliance:

Compliance with information protection regulations is not only an ethical responsibility, but it is also a legal obligation. With the enforcement of the Organic Law on the Protection of Personal Information and its Regulations, it is essential to have an information protection program that minimizes the possibility of sanctions for non-compliance.

  1. Protect information against cyber threats:

With cyber threats exponentially on the rise, businesses that invest in stern information protection measures are better equipped to defend against attacks, reducing the risk of breaches of information and the associated damages that accompany them.

  1. Preserve their reputation:

A breach of information can significantly damage a company’s reputation. Implementing data protection measures not only safeguards information, but it also protects brand image and customer perception.

  1. Have a competitive advantage:

Companies that prioritize data protection gain a competitive advantage by setting themselves apart as trusted custodians and defenders of information. The protection of personal data will continue to be a fundamental factor when considering the application and use of new technologies, making it an integral aspect of responsible and sustainable business practices.

 

© TobarZVS 

This publication contains information of general interest and does not constitute legal opinion on specific issues. Any analysis will require legal advice from the Firm.

By Estrella Andrea in DATA PROTECTION

MANDATORY TECHNICAL GUIDE FOR THE REGISTRATION OF SPECIAL AGENT ...

Mandatory Technical Guide for the Registration of Special Agents for Joint or Independent Controllers, and Foreign Processors Engaged in Personal Data Processing Activities within the Republic of Ecuador (“Guide”), issued by the Superintendence of Personal Data Protection (“SPDP”). The Guide establishes the regulations for the mandatory registration of special agents who represent foreign controllers and processors involved in the processing of personal data in Ecuador. Below is a summary of the key points of this Guide:

 

1. Application:

 

• This Guide applies to all foreign controllers and processors (without domicile in Ecuador) who offer goods and/or services to data subjects residing in Ecuador; form part of the personal data protection system; or monitor behavior.

 

2. Special Representative:

 

• Foreign companies must appoint a special agent residing in Ecuador, who shall have broad authority to represent the company before Data Protection Authorities and ensure the protection of the rights of data subjects.

 

3. Requirements for the Special Agent:

 

• The agent may be a natural person (Ecuadorian or foreign resident) or a legal entity whose corporate purpose includes acting as a legal representative.

 

4. Power of Attorney Requirements:

 

• Foreign Controllers: Must include the trademarks or trade names that identify them.

• Foreign Processors: Must indicate the legal name of the controller(s) on whose behalf they process personal data.

• Additionally, controllers and processors must provide physical and electronic addresses, as well as phone numbers of their headquarters, along with identical contact information of their designated special agents in Ecuador.

 

5. Registration of the Special Agents:

 

• The special agent must be registered with the SPDP by submitting the document evidencing the granted power of attorney.

• If the power of attorney is issued abroad, it must be apostilled or certified by an Ecuadorian diplomatic or consular agent.

• The SPDP will verify that the power of attorney meets the requirements set forth in the Guide and, if deemed sufficient, will proceed with the registration; otherwise, it must be amended according to the observations made by the SPDP.

• The SPDP will publish the register of special agents and their contact details on its website. Regulated entities must also publish their contact details to facilitate the exercise of the data subjects’ rights.

 

6. Additional Obligations:

 

• The regulated entities must submit the following to the SPDP:


– A co-responsibility or processing agreement;

– Record of processing activities (RoPA);

– Risk analysis for each processing activity;

– Data flow diagrams for each processing activity;

– Details of security measures for the communication and transfer of data;

– Codes of conduct or self-regulation, if applicable.

 

7. Transitional Provisions:

 

• The regulated entities have six months (starting from September 6, 2024) to comply with this process.

• The application and special powers of attorney must be submitted to the SPDP’s offices until the electronic platform is enabled.

 

© TobarZVS 

This publication contains information of general interest and does not constitute legal opinion on specific issues. Any analysis will require legal advice from the Firm.

By ZVS Tobar in DATA PROTECTION

Loading
...
Av. 12 de Octubre N26-97 & Lincoln Edificio Torre 1492, Office 1505 Quito, Ecuador
© 2023 tzvs.ec tzvs.ec