Historic data protection ruling

On August 9, the Chilean Supreme Court granted an appeal against the company Emotiv Inc., regarding the collection and processing neuro-data carried out by such company through its Insight device. The decision, which is unprecedented worldwide, arises from a lawsuit brought against the company in April 2022, by former Chilean congressman Guido Girardi, in which he denounced the violations of constitutional rights and warranties, derived from the Chilean Constitution. Furthermore, it was alleged that the company did not obtain informed consent from users for the processing of their personal data, did not allow the suppression of the personal data collected, and did not observe the due diligence obligation in the safekeeping of personal data, which controllers are obliged to comply with.

Although in the initial stage this lawsuit was ruled unfavorably against the plaintiff by the Court of Appeals of Santiago, alleging that Emotiv’s practices did not constitute unlawful conduct, the Chilean high court decided otherwise. Namely, the Chilean Supreme Court concluded that the warranties of physical and psychological integrity, as well as the right to privacy, were affected when the Insight product was marketed without the pertinent consent and without having been evaluated by the health authority considering the applicable regulations. Likewise, it pointed out the need to examine the impact of these new technologies, to the extent that their implementation constitutes a potential violation of people’s privacy, given that they have the capacity to know people’s thoughts and emotions. The above is relevant in Colombia sconce this scenario constitutes a setback for the protection data regulation in guaranteeing the rights of the data holders.