The Santiago Court of Appeals sentenced the telecommunications company WOM to pay a fine of 50 UTM for continuing to send promotional messages to a consumer who had requested the blocking of advertising communications. The ruling, issued in case Rol No. 2.006-2023, overturned the first-instance judgment and upheld the infringement complaint filed by SERNAC. The violation: failing to respect the exercise of the right to suspend the sending of unwanted advertising, established in Law 19,496. image.png
What happened
On May 25, 2022, a consumer requested, through SERNAC’s “No Molestar” platform, the blocking of calls, text messages, and communications via WhatsApp associated with his phone number. Two days later, the consumer received a response confirming that the company had processed the blocking request. But the messages did not stop. Between May 25 and at least June 9, 2022, the consumer continued receiving promotional communications from WOM’s web platform: offers for top-ups with “unlimited gigs,” mobile plans with included minutes, and promotions linked to the company’s app. On June 9, he filed a non-compliance notice with SERNAC. SERNAC filed the infringement complaint. WOM defended itself with two arguments. First, it challenged SERNAC’s standing to take action in defense of the public interest, arguing that there was no repeated conduct or collective impact. Second, it claimed that the blocking request had been recorded and processed. The Court rejected both defenses. Regarding standing, it recalled that Article 58 of Law 19,496 authorizes SERNAC to ensure compliance with the regulations and to act when the provider’s conduct may affect an undetermined group of consumers. The court held that the persistence in sending advertising despite the blocking request constituted a failure of the duty of professionalism with potential to become habitual. On the merits, the Court found that WOM failed to prove that the messages sent after the blocking request did not come from its platform. The evidence provided by the company only showed that the request had been recorded, but not that the sending had actually stopped. The conclusion: WOM violated Articles 23 and 28 B of Law 19,496.
What this may mean for your company
If your company sends commercial or advertising communications to consumers — by SMS, WhatsApp, email, or calls — this ruling carries a direct operational message: recording a blocking request is not the same as executing it. The Court did not sanction WOM for lacking a blocking mechanism. It sanctioned it because the mechanism existed, was activated, the company confirmed its execution, and yet the messages kept arriving. The gap lies in technical implementation, not in the declared policy. There is a procedural aspect worth noting. WOM tried to discredit SERNAC’s intervention by arguing that this was an individual case, with no collective impact. The Court applied a qualitative criterion: if the provider’s conduct reveals a systemic failure — such as being unable to stop the sending despite confirming the blocking — the potential impact on other consumers justifies SERNAC’s action in the public interest. This broadens the range of cases in which SERNAC may intervene based on an individual complaint. Another point: the fine was 50 UTM. It is not the highest sanction under the regime, but the precedent matters more than the amount. If the conduct is repeated or SERNAC detects a pattern across multiple consumers, the consequences escalate.
What you can do
- Audit your commercial communications blocking system. Verify that the blocking request is not only recorded, but effectively executed across all channels: SMS, email, WhatsApp, calls, and push notifications. Test the full flow from the request to the removal of the sending.
- Document the traceability of the blocking. If a consumer complains that they keep receiving messages despite the request, your company needs to demonstrate that the sending ceased. A request log without evidence of an effective cutoff is not enough as a defense, according to the standard in this ruling.
- Review your mass-sending policies in light of Law 19,496. Article 28 B establishes the consumer’s right to request the suspension of advertising communications. If your marketing operation relies on databases with automated sending, make sure the opt-out mechanism is integrated at the system level, not just at the protocol level.
If you need to audit your communications blocking system or review your compliance under Article 28 B of Law 19,496, <u>schedule your consultation with Cubillos Lama</u>. This alert is for informational purposes only and does not constitute legal advice for a specific case. For a specific analysis, consult our team directly.