Revista Chilena de Derecho y Tecnología

Predictive tools for the risk of criminal recidivism based on artificial intelligence: Towards their compatibility with the privacy and defense of the accused in the oral trial

Manuel Urzúa Urzúa — 2024-12-28

Artificial intelligence applied to the judicial process, has had as one of its central elements the introduction of software predictive tools for the risk of criminal recidivism at various stages of the procedural iter. Since its incorporation, the main conflicts that dispute with a variety of fundamental rights, such as the fundamental right to privacy and the fundamental right of defense of the indicted have been shown. This paper, focus in the oral trail stage, provides an explanation of the main nodes of this complex relationship; A configuration diagram of its violation is portrayed, addressing the procedural impact, and based on the above, possible conditions are proposed to make its incorporation compatible, without resulting in a violation of the aforementioned rights.

El impacto de las TIC en los tiempos de trabajo y descanso

Karla Varas Marchant — 2024-12-28

Las herramientas informáticas han permitido que la prestación laboral pueda desarrollarse en cualquier espacio físico y momento, durante los 365 días del año, provocando el fenómeno de la hiperconectividad laboral. La utilización de dispositivos tecnológicos como teléfonos inteligentes, computadoras o tabletas ha facilitado la interacción continua con el trabajo, el cual muchas veces no termina pese a haber concluido formalmente la jornada laboral. Frente a esta realidad, las herramientas clásicas de protección de los trabajadores, como la limitación de la jornada y el derecho al descanso, concebidas para una forma de organización del trabajo distinta a la actual, han resultado insuficientes. Por ello, se ha dado paso a la positivización de una nueva generación de derechos, entre ellos, el derecho a la desconexión laboral.

Blockchain legal protection: An analysis from its functionality and legal nature according to the Spanish legal system

Javier Martinez Boada — 2024-12-28

Blockchain technology has captured the interest of society because it allows information to be recorded immutably and value exchanged without trusting a central authority. Since its appearance, blockchain has evolved its functionality to the point of enabling the hosting and execution of smart contracts, that is, it has developed functionally until becoming something more complex than just a database. This evolution raises the need to reflect on its legal nature and, subsequently, on its regulatory protection. Given that the nature and legal protection are marked by the functionality of the technology, this article starts from a technical and functional characterization of blockchain to, from there, infer its nature and legal protection according to Spanish regulations.

Creation and ownership over intellectual property assets created autonomously by artificial intelligence

Tomás Jadresic Simonetti — 2024-12-28

The purpose of this paper is to analyze, from a legal point of view, the possibility that an artificial intelligence could, autonomously, give rise to the creation of objects susceptible to be protected by the intellectual property rights system. In addition, to analyze what would happen with the ownership of intellectual property rights that would fall on such objects. For this analysis, some experiences in comparative law are reviewed, in order to subsequently address the response that could be given to these questions.

La regulación chilena del delito de fraude informático en el contexto de las transacciones electrónicas

Gonzalo Bascur Retamal — 2024-12-28

El texto ofrece una interpretación del delito de fraude informático previsto en el artículo 468 del Código Penal y en el artículo 7 de la Ley 21.459, habida consideración de las modificaciones introducidas por la Ley 21.595, abordando las cuestiones que se consideran más relevantes para su aplicación.

The provision of means within the company for the commission of computer fraud:

Laura Viviana Mayer Lux — 2024-10-15

The paper analyzes one of the most innovative crimes of Law 21,459, namely, the «facilitation of means» for the commission of computer fraud, specifically when it is verified within a company, whose business is related to electronic transfers. The text focuses on differentiating between the commission of said crime and other cases, such as the lack of an (adequate and effective) compliance model. The article defends a restric-
tive interpretation of the crime of facilitation of means, based on the significance of said expression and on the diverse legal nature that can be attributed to the commission of a
crime, on the one hand, and the absence of a compliance model, on the other.

Consumers at risk: Analysis of the influence of the use of algorithms on the supplier’s benefit

Betty Martinez-Cárdenas — 2024-10-30

This study addresses the impact of the artificial intelligence and programmed algorithms on consumer relationships, examining potential implications such as altered decision-making, pricing discrimination, and data misuse. It evaluates the response of Chile’s National Consumer Service through market studies, collective agreements, and legislative reforms. The research concludes that these efforts place Chile at the forefront of electronic consumer protection in Latin America. However, it acknowledges the ongoing need for increased awareness among e-commerce participants at a transnational level.

Financial regulatory sandboxes as a tool to control the regulatory power of the States:

Hans Guthrie Solís — 2024-08-07

The structural changes demonstrated by the financial industry challenge States to exercise their regulatory power in terms that do not affect technological development and innovation. In response to the change in the techno-financial paradigm, States have also innovated and one of the tools used is the financial regulatory sandbox. In this context, in this paper we propose that these mechanisms are an adequate tool to order the sector, and, in turn, constitute a form of control of the discretionary power of the States, favoring innovation, inclusion and quality of regulation. This is done through an analysis of three financial sandbox experiences in Latin America.

Reflections on the legal protection of the cross-border electronic consumer in Colombia:

Jenner Tobar Torres — 2024-07-26

This article analyzes the regulatory barriers that cross-border e-commerce consumers encounter when carrying out this activity. Moreover it presents the main legislative developments that can be found in this matter in Europe and Latin America in order to identify the challenges that Latin American States must assume to achieve an adequate regulatory framework that guarantees the rights of international electronic consumers, especially access to an effective judicial solution.

Digital punitivism: Dangerous exposure of personal data as a crime

Alejandra Castillo Ara — 2024-07-26

This article analyzes de lege lata the subsumption of the hypotheses of exposure of personal data in social networks (funas and doxing) and raises the question de lege ferenda on the criminalization of the exposure of dangerous personal data that may affect life, physical integrity, or sexual freedom, among other legally protected interests. The absence of adequate regulation of personal data and new technologies, as well as the irrelevance of informational self-determination as an autonomous legal interest in criminal law, are also issues discussed in this paper, to determine whether the infringement of this legal interest and other violated legal interests, such as honor, should be claimed in criminal or constitutional courts. Finally, an excursive question is posed on digital shaming as a formal punishment from the State.

Algorithmic discrimination in automated recruitment and hiring processes

Alberto Coddou Mc Manus — 2024-06-10

In this article, we describe and analyse the different forms of discrimination that derive from the design and implementation of automated recruitment and selection processes. In addition, we analyse and assess the substantive, evidentiary and procedural issues that arise when trying to regulate the phenomenon of algorithmic labour discrimination in the pre-contractual stage, with special focus on the challenges that arise for Chilean law.

The right to disconnect

Diana Valencia-Tello — 2024-05-17

Each industrial revolution has a particular way of organizing work and production in industries, which impacts the structure of jobs and with it the rights and obligations of workers. Currently, the fourth industrial revolution and the covid 19 have strengthened the digitization of many production processes and with it have modified the traditional structure of jobs. In this context, work disconnection is a new type of right, where due to the difficulties of regulating the working day under the same parameter, countries are appealing to self-regulation of organizations through collective agreements or internal regulations, in order to establish disconnection policies and thereby guarantee the rest that every worker requires to stay productive. This new regulatory dynamic requires State control and surveillance to be effective and its impact is essential to promote decent work and economic growth in accordance with objective 8 of the 2030 Agenda for Sustainable Development.

Human rights, social networks and judicial protection:

Claudio Nash Rojas — 2024-05-04

This article analyzes the conflicts between human rights that arise in the context of the use of social networks. The current constitutional and legal regulations are reviewed; the jurisprudence is analyzed on two relevant topics, such as the right to be forgotten and funas or scratch; and, finally, some criteria are proposed for the resolution of cases in the national justice system so that it adapts to international standards on freedom of expression. The study seeks to demonstrate the deficits in legislation and judicial interpretation that are preventing the full enjoyment and exercise of freedom of expression through social networks in Chile and proposes some criteria that would allow this situation to be overcome.

The management of disputes by electronic means in Law 19,496. Background, conceptualization and design proposals for a Consumer ODR mechanism for Chile

Cristian Rojas Rojas — 2024-04-08

This paper reviews the changes introduced by Law 21,398 in dispute resolution mechanisms for the protection of consumer rights. It analyzes the scope of the legal authorization so that the dispute resolution system of Law 19,496 can be carried out by electronic means, which will promote the development of ODR (Online Dispute Resolution) mechanisms. The document advances in an operational conceptualization of ODR mechanisms aimed at formulating design proposals for an online consumer dispute resolution system in Chile.

Neuro-rights in Labor Law from the reform of Law 21.383 and its projection

Roberto Padilla Parga — 2024-04-08

With the reform of Law 21.383, an unprecedented global phenomenon occurs in the Chilean legal system through the constitutional recognition of neurorights. Considering that neurotechnologies project an influence on social life and that work plays a central role in it, it is appropriate to ask if there is any kind of effect of this right in the workplace and what can be said regarding the inclusion of neurorights in Labour Law. This text argues against the idea of proceeding immediately to the adoption of this proposal in the labor field in favor of exploring the options already existing in the legal system of the branch, those that protect the same legal rights that would be sought to be protected through this new category of rights, subtracting contribution.

The role of anonymity in online harmful conducts: is regulation the answer?

María Francisca Ossa Monge — 2024-04-19

The aim of this essay is to analyse the conflictive relationship between online anonymity and online harm, and whether there is a causality amongst these two features of today’s online ecosystems. Furthermore, we take a glimpse of the incipient regulation on this matter, mainly by the Digital Services Act in the EU and the Online Harms White Paper in the UK, as well as other proposed regulatory solutions given for this increasing problem for the current and new generations with the ever-expanding presence of Internet worldwide.

The effects of the use of algorithms in e-commerce and consumers

Natalia Bolivar-Gacitúa — 2024-03-05

This research describes some of the risks caused by the use of algorithms in electronic commerce (e-commerce) and analyzes the relationship between its use and the transformation of the structural vulnerability of consumers into hypervulnerability. The first and second part of the study describe the concept of algorithm, the operation of e-commerce and how the use of technology affects it. The third and fourth part explore the concept of hypervulnerability, specifically the hypervulnerability of the digital consumer; ending with the analysis of those situations of risk of vulnerability in electronic commerce (dark patterns), and the discrimination that affects digital consumers, due to price differentiation implemented by algorithms.

Democracy and control of content on the network: Special reference to Spain

Jhenny de Fátima Rivas Alberti — 2024-03-07

Freedom of expression and the right to information constitute fundamental elements for the existence of democracy, in particular, the right to information includes both the right to give and receive information. The arrival of new information and communications technologies has produced relevant changes in the ways in which people perceive and disseminate information, but they have also given rise to the conflict of fake news or disinformation processes. This article analyzes the traditional requirements of truthfulness and public relevance of the right to information, as well as the dissemination of news through social networks. In addition, the main legal and political responses are proposed to counteract the consequences of disinformation, with particular emphasis on digital information literacy and the use of artificial intelligence

Crowdlaw and Digital Parliament in Law-Making

Francisco Soto Barrientos — 2024-01-31

The present article aims to reflect on relevant experiences of citizen deliberation in processes of open normative creation through digital media that have been carried out in Chile - as forms of digital parliament and in the processes of participation in Chilean constituent processes -, within the context of its growing worldwide development to reconnect citizens with democratic political systems. The developments in Chile, as well as in comparative experience, show the need to regulate adequate deliberation and its impact on the processes of normative creation.