Technology News | August 2008
|Internet Law - Mexican Spam Law|
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Mexican law approaches the spam problem not through specific anti-spam legislation, but instead through a consumer protection law that is designed to regulate advertising and marketing on the Internet. The legislation gives consumers the right to know whether their personal information is being collected and stored, the type of information collected, and whether their information is distributed to third parties
Consumers can demand correction or deletion of inaccurate information. In addition, consumers can opt out of receiving unsolicited commercial messages via the Internet. This article provides an overview of the Mexican spam law.
Mexican Federal Consumer Protection Law (FCPL) regulates Internet marketing and advertising and is the legal framework against spamming since June, 2000. According to FCPL's preamble, its scope is limited to unsolicited commercial messages originating in the Mexican territory. In addition to Internet advertising and marketing rules, FCPL contains rules on companies' collection and storage of personal data that were introduced in a 2002 Amendment.
The FCPL, article 16, requires retailers and companies that use consumer information for marketing and advertising purposes, to advise those consumers, without charge, on whether personal information is collected. Indeed, if personal information is collected, retailers and companies must make it available to consumers within thirty days from the consumer's request. Additionally, retailers and companies must inform consumers if personal data has been shared with third parties, the identity of such third parties, and the recommendations offered.
Furthermore, under the FCPL, retailers, suppliers, and companies must correct, clarify, or delete inaccuracies or ambiguities on consumers' personal data within thirty days upon consumers' request. In this case, retailers and companies must also notify third parties of any changes.
What are the basic advertising rules under the Mexican law?
FCPL's basic advertising rules include,
(1) FCPL requires suppliers, i.e., sellers or distributors, to avoid using unclear or deceptive sales or advertising strategies that do not provide clear and adequate information on the goods or services offered.
(2) Marketing practices targeted at children, the elderly, and the infirm must include warnings in cases when the information will not be appropriate for such vulnerable population.
(3) FCPL, article 17, provides that commercial messages or advertising sent to consumers must contain the name, address, telephone and, where applicable, the e-mail address of the provider, and of the business that sends the publicity on behalf of providers. It also must include the name of the Federal Attorney for Consumer Protection Office (PROFECO).
(4) Consumers may “opt-out” of receiving unsolicited commercial advertisements over the Internet. Thus, unsolicited messages must inform consumers about the "opt-out" process.
(5) FCPL expressly prohibits sales or advertising strategies that do not provide consumers with clear and sufficient information on the services offered.
How does the FCPL’s opt-out clause work?
A consumer may demand of providers and businesses using the consumer’s information for marketing or advertising purposes (1) to stop the spamming practice and (2) to restrain from transmitting or sharing his/her personal information with third parties.
Does Mexico have a “Do-Not-Spam” Registry?
Article 18 of the FCPL gives PROFECO, Mexican consumer protection entity, the authority to create a public registry for Mexican consumers who do not want their personal information to be used for marketing and advertising purposes, or shared with third parties.
What are the penalties for violations of the FCPL rules?
Penalties for noncompliance with the FCPL range from $150.00 to $2,520.00 Mexican pesos. In a case of “backsliding”, i.e., repeated violations within a one year period, the fines may be doubled and the violator may be jailed for up to thirty-six hours. Criteria for determining penalties are (i) the loss caused to the consumer or to society in general; (ii) the intentional nature of the violation; (iii) whether it is a recurring case; and (iv) the infringer's economic condition.
For Further Information or Assistance
“Overview of Mexico’s Legislation to Combating Spam”