Legal Persons, Habeas Data, and Informational Self-Determination
Attorney María José López Cobo
1. Background
Through Judgment No. 001-14-PJO-CC, in Case No. 0067-11-JD, dated April 23, 2014, published in Official Register Supplement No. 281 of July 3, 2014, and in Constitutional Gazette No. 007 of July 3, 2014, the Plenary of the Constitutional Court issued a binding judicial precedent judgment on the jurisdictional guarantee of habeas data.
This occurred after the Selection Chamber of the Constitutional Court, for the transitional period, on December 13, 2011, at 12:40, through a selection order and pursuant to the selection parameters provided in Article 25 of the Organic Law on Jurisdictional Guarantees and Constitutional Control — LOGJCC — selected Case No. 0067-11-JD, concerning the appellate judgment in habeas data action No. 570-2011, issued by the Labor, Childhood, and Adolescence Chamber of the Provincial Court of Justice of Azuay.
This judgment resolves important legal issues, such as the legitimacy of the exercise of the action by a legal entity and informational self-determination.
2. Informational Self-Determination
The Constitutional Court analyzed rights connected to those protected by habeas data, in accordance with the principle of interdependence. It explained the importance of the right to personal data protection, due to its complex content, recognized in Article 66(19) of the Constitution.
One of the elements of this right is informational self-determination, which, according to the Constitutional Court, “entails the right of every person to exercise control over personal information concerning them, before any public or private entity.”
This right was first used by the Federal Constitutional Court of Germany in the judgment on the Census Act of December 15, 1983, which empowered persons to decide and give informed and free consent regarding the use of their personal data by third parties, in light of the automated processing of such data.
The purpose of this is “to maintain control over the data that exists about a person or about their assets, and to protect the right to honor, good reputation, and personal and family privacy.”
3. Personal Information of Legal Entities and Habeas Data
The Constitutional Court stated that legal entities have the right to file habeas data actions regarding acts aimed at protecting “personal data and reports (…) about themselves, or about their assets.”
The Court clarified that this right extends only to their partners, legal representatives, and related persons, insofar as the position they hold and the legal relationship established with the legal entity are concerned, and strictly with respect to them.
Therefore, a legal entity cannot claim as its own the right to the protection of personal data and personal information of those related to it, since that right belongs only to the person to whom the information pertains.
Through Judgment No. 068-10-SEP-CC, the Constitutional Court, for the transitional period, stated:
“Regarding this assessment made by the respondent party — that legal entities are not holders of constitutional rights — this Court reiterates that, although legal entities are not holders of all fundamental constitutional rights, they are holders of those rights that correspond to them according to their social nature and always in accordance with the constitutional definition of the rights concerned.”
Based on this criterion, the Constitutional Court concluded that legal entities may indeed be holders of the habeas data action.
4. Active Standing of Legal Entities
The Constitutional Court explained that, in the case of jurisdictional guarantees, active standing is open. However, in the case of habeas data, because there are conflicting rights — access to information and informational self-determination — that may be affected, there must be an express act of will allowing the active claimant to appear on behalf of the holder of the constitutional rights.
Otherwise, the right to privacy and other rights dependent on the confidentiality of personal information would be left unprotected against the malicious use of the action.
For this reason, Article 92 limits active standing to “any person, by their own rights or as a representative duly authorized for such purpose,” in accordance with Article 51 of the LOGJCC.
In this regard, the Constitutional Court established the following judicial rules:
a) Active standing to file a habeas data action requires that the person filing it be the holder of the right to personal data protection alleged to have been violated, or their duly authorized representative.
b) To prove representation of legal entities, it shall be sufficient to submit the document that the law governing the matter determines as sufficient to consider the representative’s functions as having begun.
5. Purposes of Habeas Data
The Constitutional Court determined that:
“Habeas data, as a guarantee mechanism for the right to personal data protection, may not be filed as a means to request the physical delivery of the material or electronic medium of the documents in which the holder’s personal information is alleged to be contained, but rather to know of its existence, access it, and exercise the acts provided for in Article 92 of the Constitution of the Republic.”
Therefore, it is the judge who must use all mechanisms established by law in order to duly and effectively guarantee the acts set forth in the aforementioned article.
6. Effects of the Judgment
The Constitutional Court determined that “the judgment shall have general effects for the future, with respect to all cases in which jurisdictional guarantees of constitutional rights are filed and the assumptions of this judgment are verified, without prejudice to the fact that this binding judicial precedent may also be applied to cases in which such guarantees are already pending.”