On February 17, 2023, the Court of Appeals of San Miguel accepted the appeal for protection filed by the father of a minor girl due to a publication made by the mother on her social network in which she claims an alleged wrongful parental custody.

On October 3, 2022, the mother accuses the appellant, through Facebook, of being a negligent father for different reasons.

In merit of the above, the Court accepts the appeal. In the recitals, it cites “Law No. 19.628, on the Protection of Privacy, whose Article 2°, letters f) and g), which states that, “for the purposes of this law shall mean: f) Data of a personal nature or personal data, those relating to any information concerning natural persons, identified or identifiable. g) Sensitive data, those personal data that refer to the physical or moral characteristics of persons or to facts or circumstances of their private life or intimacy, such as personal habits, racial origin, ideologies and political opinions, religious beliefs or convictions, physical or psychological health conditions and sexual life [. …]”, and furthermore, using the same law explains that “article 4 of the aforementioned law provides that “the processing of personal data may only be carried out when this law or other legal provisions authorize it or when the owner expressly consents to it. The authorizing person must be duly informed of the purpose of the storage of his personal data and its possible communication to the public. The authorization must be in writing. The authorization may be revoked, although without retroactive effect, which must also be done in writing…”.

In the same sense, the Court complements its reasoning with Article 10 of the aforementioned regulation which states that: “Sensitive data cannot be processed, except when authorized by law, when there is consent of the owner or when the data is necessary for the determination or granting of health benefits corresponding to their owners”.

Therefore, the Court concludes that the respondent’s actions violated the legal precepts transcribed above, affecting the appellant’s rights to intimacy, privacy and honor, violating the constitutional guarantee set forth in Article 19 N°4 of the Political Constitution of the Republic, since, without his consent, it made publications, attributing him to be a bad father.

Should you require additional information on this matter, please contact Jorge Tisné (jtisne@jdf.cl).