In April 2022, the National Chamber of Appeals in Administrative and Federal Contentious-Administrative Matters (the “Chamber” or “NCA”) confirmed the First Instance Ruling in the case “Open Discovery S.A. c/EN – M° Justicia s/Proceso de Conocimiento” Case No. 46.802/2010, endorsing for the first time, a sanction imposed by the National Directorate of Personal Data (“NDPD”) in 2009.
The background of such suit is the NDPD Provision No. 5/2009, by means of which the Directorate had sanctioned Open Discovery S.A., a Company dedicated to the preparation of commercial and personal reports in Argentina., (the “Company”, or “Open Discovery”, indistinctly), with a fine of $50,000 and anorder of closure of all databases used to prepare the “Globinfo” report, for considering that it did not comply with data protection regulations. Consequently, the Company decided to file a lawsuit against the National State, which was rejected by the Judge of First Instance. Naturally, the Company decided to appeal and filed a complaint.
Notwithstanding the above, the CNA upheld the first instance ruling. In this regard, it considered, among other things, that the appealed decision was not arbitrary, since it was based on the evidence and arguments provided by the parties, and determined that Open Discovery had not presented sufficient evidence to overturn the presumption of legitimacy, considering that the Provision of the Directorate complied with the elements of the administrative act, as requested by Law. In this line, it also dismissed the claims of error in the graduation of the sanction and omission in the analysis of the subsequent evidence, considering them insufficient.
To this effect, the Chamber also dismissed Open Discovery’s claim that alleged that there was a contradiction between an administrative act and the sanctioning act, as the first one had stated that “… the processing of personal data is not, in principle, contrary to the legislation on personal data protection….”. In this sense, the NCA stated that, on the contrary, the phrase “in principle” indicated that the Company´s performance was still subject to review, and that in addition, the Act referred exclusively to the compliance with the registration of databases, and not to the manner in which the company wasprocessing the information to issue the report. Therefore, in the eyes of the Chamber, both Resolutions were compatible.
Accordingly, the NCA also emphasized that the type of information offered in the report did not comply with the provisions of Section 26 of the Data Protection Act, since it offered, in addition to asset and credit information, personal information on the data subject, when “it was only authorized to process data relevant to the asset situation”. Thus, it confirmed the first instance ruling.
This report should not be considered as legal or any other type of advice by Allende & Brea.
