Octopus Cybercrime Community

Chile was officially invited by the Council of Europe to accede to the protocol of accession to the Budapest Convention since 2009, and in 2017 the government deposited the instrument of accession to the treaty.

On 20 June 2022, a new cybercrime Law was enacted (Law No. 21.459/2022). The new Law repeals the former cybercrime law (Law No. 19.223/1993), modernizes the Chilean legal framework on cybercrime and adapts it to the provisions of the Budapest Convention.  Among new provisions, Chile criminalized offenses such as abuse of device, computer-fraud and computer forgery as well as offered exemption from criminal liability for “ethical hacking” practices.

The application of criminal law is set forth in Article 5 of the Criminal Code (1874) , which is based on the principle of territoriality, as well as in Article 6 which sets the limits of the principle of extraterritoriality of criminal law.

The offenses related to the use of information and computer systems that are sanctioned and punished in Chile by way of Law No. 21.459/2022 are the following:

• Unlawful access (art. 2)
• Unlawful interception (art. 3)
• Attack on the integrity of computer data (i.e., data interference, art. 4)
• Attack on the integrity of computer systems (i.e., system interference, art. 1)
• Abuse of devices (art. 8)
• Computer forgery (art. 5)
• Computer fraud (art. 7)

Offenses related to child pornography are found in the Criminal Code (1874) (art. 366 quinquies, and art. 374 bis and ter). Law No. 21.459/2022 on cybercrime states that abusing the vulnerability, trust or lack of knowledge of children and adolescents constitutes an aggravating circumstance. Offenses related to copyright and related rights are listed in Law No. 17.336 on Intellectual Property.

The first and second paragraphs of Article 76 of the Political Constitution of the Republic of Chile expressly sets forth the powers of the Judiciary to hear civil and criminal cases and to solve and execute the cases tried under the Tribunals established by legislation.

The criminal procedural law of Chile does not contain provisions regarding the recognition and use of electronic evidence in national courts. However, the provisions of the Criminal Procedure Code (2000) set forth the general rules for the procedures related to the investigation of crimes, including cybercrime. The criminal procedural legislation in Chile provides the following:

• Scope of procedural provisions and communication between authorities (arts. 19 and 20 of the Criminal Procedure Code (2000)
• Expedited preservation of stored computer data (art. 18 of Law No. 21.459/2022)
• Production order (arts. 11 to 14 of Law No. 21.459/2022)
• Search and seizures of objects, documents and instruments (arts. 187 and 217 of the Criminal Procedure Code (2000))
• Interception of content data (art. 369 ter of the Criminal Code (1874))

Other procedural laws include:

• Proceedings of the criminal investigations that Public Prosecutors might conduct (arts. 180 to 189 of the Criminal Procedure Code (2000))
• Authorization by the investigating judge at the request of the Public Prosecutor to request that any communications company provide copies of communications transmitted or received by them and arrange the delivery of the versions that may exist in the broadcasting of radio, television or other means. (Art. 219 of the Criminal Procedure Code (2000))
• Procedure to conduct the registration of interception and recording of telephone communications and the corresponding notification to the affected party (Arts. 223, 224 and 225 of the Criminal Procedure Code (2000))
• Using photographs, films or other technical means of reproducing images that help clarify offenses deserving punishment of crime (Art. 226 of the Criminal Procedure Code (2000))

The protection of human rights and safeguards under the legislation of Chile are the following:

• Due process (Arts. 42 and 43 Criminal Proceedings Code (1906) ; Arts. 1º and 2º. Criminal Procedure Code (2000) ; Art. 21. Political Constitution of the Republic of Chile)

• The right not to be cited, arrested, detained, remanded in custody, separated from home or rooted (Art. 42 bis Criminal Proceedings Code (1906)
• The right to personal liberty and individual security (Art. 19 Political Constitution of the Republic of Chile)
• Rights of the accused (Art. 67 Criminal Proceedings Code (1906); Arts. 4, 7, 8, 9 y 10 Criminal Procedure Code (2000))
• Rights of victims in criminal proceeding (Art. 6º. Criminal Procedure Code (2000))
• Respect for private and public life and the honor of the individual and his family (Art. 19 numeral 4 Political Constitution of the Republic of Chile)
• The inviolability of the home and all forms of private communication (Art. 19 numeral 5º. Political Constitution of the Republic of Chile).

The following laws, codes and ordinances contain provisions relating to offenses committed through the use of computer systems and Internet, as provided in the section on substantive and procedural law:

• Political Constitution of the Republic of Chile [in ENG]
• National Cybersecurity Policy of 2017 [in ENG]
• Criminal Proceedings Code (1906) [in ES]
• Criminal Procedure Code (2000) [in ES]
• Criminal Code (1874) [in ES]
• Law No. 21.459 of 2022 on cybercrime [in ES]
• Law No.19.223 of 1993 on criminal figures related to computing [repealed by Law No. 21.459] [in ES]
• Law No. 19.496 of 1997 on consumer protection [in ES]
• Law No. 20.478 of 2010 on the recovery and continuity of critical and emergency conditions of the public telecommunications system [in ES]
• Law No. 17.336 of 1970 on Intelectual Property [in ES]
• Law No. 19.799 on electronic documents, electronic signature and certification services of said signatura as amended in 2014  [in ES]
• Law No. 20.285 of 2008 on the Access to public information  [in ES]

Legal Framework

The Criminal Proceedings Code (1906) contains provisions for the extradition of accused parties when located in foreign territory if the offense is considered as such in accordance with international law (art. 279). The extradition procedure of accused individuals is conducted pursuant to the provisions contained in Title VI of the Criminal Proceedings Code (1906) (arts. 635-656).

Chile is part of the Inter-American Convention on Extradition, of the Central American Extradition Agreement of 1924 and of the Treaty on Extradition of 1903, instruments that mutually recognize and facilitate criminal extradition of prosecuted individuals with the great majority of Latin American countries.

Chile has signed and ratified extradition treaties and conventions on international judicial cooperation in criminal matters with the following countries: Australia, Belgium, Bolivia, Brazil, Colombia, Korea, Ecuador, Spain, United States, United Kingdom, Nicaragua, Mexico, Paraguay, Peru, Portugal, Uruguay and Venezuela.

The official list of extradition treaties and conventions on international judicial cooperation in criminal matters that Chile has signed and ratified is available in the Library of the National Congress of Chile:

In addition, Chile is part of the following agreements:

• U.S.-Chile Cyber Threats Cooperation Agreement: defense and cooperation, specifically on cyber operations and protection of Chile's cyber domain
• Ecuador-Chile Agreement: cooperation in issues related to defence, including cyberdefence and cybersecurity
• Resolution on Working Group on Cooperative and Confidence Building Measures for Cyberspace, Inter-American Committee against Terrorism: interstate cooperation, transparency, predictability and stability, risks of misperception, escalation, and conflict that may stem from the use of ICTs
• OAS Cyber Security Initiative: Chile is co-sponsor
• Global Forum on Cyber Expertise: Chile is member

Competent authorities and channels

The competent authority to investigate crimes in Chile is the Public Prosecutor (Ministerio Publico) with the support of the Investigations Police of Chile. The powers and attributions of the Public Prosecutor are contained in Article 77 of the Criminal Procedure Code (2000) and the Organic Constitutional Law of the Public Prosecutor. The powers and duties of the Investigations Police of Chile, which acts as assistant to Public Prosecutor in the investigation tasks, are provided for in Articles 79-83 of the Criminal Procedure Code (2000).

The extradition of accused parties is conducted through the provisions of the Convention on Extradition of Montevideo and the respective extradition treaty with the country in which the accused is being processed. The authorities and official channels to conduct an extradition procedure are the Supreme Court, the Public Prosecutor (Ministerio Publico) through the prosecutors and the Ministry of Foreign Affairs of the Republic of Chile.

The competent authority to investigate crimes in Chile is the Public Prosecutor (Ministerio Publico) with the support of the Investigations Police of Chile. The powers and attributions of the Public Prosecutor are contained in Article 77 of the Criminal Procedure Code (Law 19.696) and the Organic Constitutional Law of the Public Prosecutor. The powers and duties of the Investigations Police of Chile, which acts as assistant to Public Prosecutor in the investigation tasks, are provided for in Articles 79-83 of the Criminal Procedure Code (Law 19.696).

The extradition of accused parties is conducted through the provisions of the Convention on Extradition of Montevideo and the respective extradition treaty with the country in which the accused is being processed. The authorities and official channels to conduct an extradition procedure are the Supreme Court, the Public Prosecutor (Ministerio Publico) through the prosecutors and the Ministry of Foreign Affairs of the Republic of Chile.