Compensation for damages regime and habeas data actions in Argentina
Written by Mariano Peruzzotti, Julieta Martinez Correa and Josefina Piñeiro
In the decision “La Rocca, Vicente José c/ Cencosud S.A. s/ Habeas Data (art. 43, CN)”, Division I of the Court of Appeals in Civil and Commercial matters (“Court of Appeal”) upheld the original ruling that dismissed the claim for non-pecuniary damages in a lawsuit brought under the provisions of the habeas data action (section 33 of Personal Data Protection Law No. 25,326).
In 2019 the plaintiff visited a store to purchase a cellphone. During his visit, members of Cencosud S.A. offered him a credit card. He claimed that despite not accepting the offer, he unexpectedly received a credit card at his home. Furthermore, the plaintiff alleged that he never activated nor used the card. However, he received calls from the defendant requesting the payment of a debt in the amount of Argentine Pesos 20,000 (USD 58 at the current exchange rate). He realized that he was also included in the Central Bank registry of loans from debtors classified under category 5 “bad debt”. Thus, he initiated a court action seeking damages.
The District Court dismissed the claim for non-pecuniary damages, considering that the action initiated by the plaintiff was not the proper one to obtain compensation for damages, given the nature of the habeas data remedy. This ruling was subsequently appealed by the plaintiff.
The Court of Appeals upheld the trial court’s ruling. The Court of Appeals emphasized that both Article 43 of the Federal Constitution and the PDPL are meant to provide an expedite and brief court remedy that allows data subject to request the removal, update, correction, confidentiality treatment of personal data. Consequently, seeking compensation for infringements to the personal data protection rules through this executive court remedy is not possible; an ordinary full action must be instituted to obtain such a petition. In other words, the plaintiff must initiate two different actions: first, the habeas data remedy to obtain access, updates, correction, removal, or confidential treatment of his/her personal data; and secondly, an ordinary action on the merits that allows the parties to discuss civil liability and the relevant compensation for damages.
For more information: mperuzzotti@ojambf.com, Julieta Martinez Correa and Josefina Piñeiro
