Three criteria for the elaboration of the Regulation to the Ecuadorian data protection law
After the publication of the Personal Data Protection Law, on May 26, 2021, Ecuador now faces an important challenge to continue configuring its data protection system: the regulation of the law. In particular, cross-cutting and highly relevant issues are properly developing the adopted regulatory model and avoiding the rush derived from a desire to instrumentalize the regulations as political propaganda.
The rush and temptation of political propaganda
Let's start with the matter of the instrumentalization of the norm. This has already happened with the Personal Data Protection Law in the previous government that, after years of having the bill stalled, suddenly activated the issue with a very questionable haste that led them to commit various and serious errors. On the one hand, the National Assembly (Ecuadorian legislative body), approved the text of the law with serious errors of form (such as discordant references, incomplete paragraphs, among other things) in a session in which - in a marathon journey - they discussed 6 Law projects. All this within days of the end of his time in functions.
The outgoing president, holder of the executive power who was the one who presented the Law project, as soon as he received the text approved by the assembly, did not raise any objection and ordered the publication of the project in the Official Registry. He was also in a hurry, he was a few days away from the end of his mandate and he could not let "his project" be approved by the incoming government and not by himself. Again, the rush led him to approve a normative text with errors that are obvious with a simple reading.
The careless haste produced by the eagerness to make propaganda is a temptation that the current government must avoid. The best political promotion campaign will be that they carry out their work with better solvency than their predecessors. For this, it is necessary that in the elaboration of the regulations to the Data Protection Law they know how to develop the adequate regulatory model.
Understanding and developing a new regulatory model
The second transversal challenge that the current government has is to understand and develop a regulatory model that is extremely different from what Ecuador has known until now. This is the first data protection law that Ecuador has, it is the first time that it develops specialized institutions in the matter.
At the time of writing this article, there is already a draft regulation that was developed by one of the entities of the executive power. The project is currently in the hands of the legal secretary of the presidency. During its construction, the draft regulation started precisely with the lack of not sufficiently understanding the regulatory model that the Law adopted and therefore establishing various highly problematic obligations and institutions (for example, the existence of an "intermediate control authority" apart from the data protection authority in the context of public records).
Now, what is that regulatory model? By "regulatory model" we understand a specific way of configuring the various rules and institutions that govern a certain reality. In the Ecuadorian case, where the protection of personal data is an independent fundamental right recognized in the Constitution, the specialized Law almost completely includes the institutions and provisions of the GDPR. The regulatory model, then, is similar to the European one, although this does not necessarily mean that each and every one of the provisions of said model must be copied.
Three fundamental characteristics of the regulatory model that must be reflected in the regulations to the Data Protection Law are: (1) abstraction and flexibility; (2) minimum administrative requirements; and, (3) ex post control.
- Abstraction and flexibility: the regulations on the protection of personal data, when it is of general application, tend to be abstract and flexible due to a need derived from both the consideration of the obligated subjects and the type of matter that is regulated. A sufficiently abstract and flexible regulation is imperative so that it can be applied to organizations of the most diverse sizes and both in the public and private sectors. This characteristic is also necessary because the protection of personal data in a rapidly changing digital society with diverse realities cannot be governed by excessively regulated norms. Abstraction and flexibility are reflected in the risk-focused approach that is typical of this subject. Not only must the rule be built progressively based on the risk associated with the type of personal data processing, but it even mandates that the obligated subject adopt measures to manage the risk associated with the personal data processing operations that it carries out.
- Minimum administrative requirements: the administrative overload is a clear risk for the Data Protection Authority, especially because it is an entity that has a very wide spectrum of obligated subjects and an almost ubiquitous subject matter (personal data is -almost- everywhere economic activity). If the Authority is overloaded with unnecessary administrative work, this will be detrimental to its role of monitoring and promoting of personal data protection. To this argument of convenience is added a legal one: the principle of accountability that governs the protection of personal data in Ecuador (art. 10. LOPDP) was precisely conceived to "replace or reduce administrative requirements", especially those related to prior notifications.
In the construction of the regulation, this criterion must be taken into account and the administrative requirements must be reduced to a minimum.
- Ex post control: the control activities of the Data Protection Authority must first of all be ex post, that is, after the processing activity has begun. This imperative shares its foundation with the previous one: an argument of convenience and a legal one. This criterion is also deduced from the principle of accountability . The cases in which an ex ante control is admissible are those in which there is a high risk associated with the treatment, an example of this is that relating to the Impact Assessment of the processing of personal data (art. 42 LOPDP).
Ecuador continues to build its personal data protection system, for which those responsible for developing the regulation must properly understand and apply the criteria of the regulatory model that was assumed with the Personal Data Protection Law. This model is not "invented from scratch" by Ecuador but is inspired by the GDPR and must be nurtured by its experience and reality, without this meaning that it must copy each and every one of its provisions.
The best “flag” for the government will be precisely to avoid haste and create a regulation with a high technical standard.
Article provided by INPLP member: Pablo Arteaga (M. Bodero & Asociados, Ecuador)
Dr. Tobias Höllwarth (Managing Director INPLP)