Habeas Data
Encyclopedia
Habeas data is a writ
and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”. The remedy varies from country to country, but in general, it is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honour, information self-determination and freedom of information of a person.
Habeas data can be sought by any citizen against any manual or automated data register to find out what information is held about his or her person. That person can request the rectification, actualisation or even the destruction of the personal data held. The legal nature of the individual complaint of habeas data is that of voluntary jurisdiction, this means that the person whose privacy is being compromised can be the only one to present it. The Courts do not have any power to initiate the process by themselves.
(which is roughly translated as “[we command] you have the body”). Other individual complaints include the writ of mandamus
(USA), amparo
(Spain, Mexico and Argentina
), and respondeat superior
(Taiwan).
The habeas data writ itself has a very short history, but its origins can be traced to certain European legal mechanisms that protected individual privacy. This cannot come as a surprise, as Europe is the birthplace of the modern Data Protection. In particular, certain German constitutional rights can be identified as the direct progenitors of the Habeas Data right. In particular, the right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality . This is a right to know what type of data are stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data. The other direct predecessor of the Habeas Data right is the Council of Europe’s 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including a right to access their personal data held in an automated database.
The first country to implement Habeas Data was the Federal Republic of Brazil
. In 1988, the Brazilian legislature voted to introduce a new Constitution, which included a novel right never seen before: the Habeas Data individual complaint. It is expressed as a full constitutional right under article 5, LXXII, of the Constitution.
Following the Brazilian example, Colombia incorporated the Habeas Data right to its new Constitution in 1991. After that, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”. The remedy varies from country to country, but in general, it is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honour, information self-determination and freedom of information of a person.
Habeas data can be sought by any citizen against any manual or automated data register to find out what information is held about his or her person. That person can request the rectification, actualisation or even the destruction of the personal data held. The legal nature of the individual complaint of habeas data is that of voluntary jurisdiction, this means that the person whose privacy is being compromised can be the only one to present it. The Courts do not have any power to initiate the process by themselves.
History
Habeas data is an individual complaint before a Constitutional Court. The first such complaint is the habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
(which is roughly translated as “[we command] you have the body”). Other individual complaints include the writ of mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
(USA), amparo
Amparo (law)
The writ of amparo is a remedy for the protection of constitutional rights, found in certain jurisdictions...
(Spain, Mexico and Argentina
1994 reform of the Argentine Constitution
The 1994 amendment to the Constitution of Argentina was approved on 22 August by a Constitutional Assembly that met in the twin cities of Santa Fe and Paraná...
), and respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
(Taiwan).
The habeas data writ itself has a very short history, but its origins can be traced to certain European legal mechanisms that protected individual privacy. This cannot come as a surprise, as Europe is the birthplace of the modern Data Protection. In particular, certain German constitutional rights can be identified as the direct progenitors of the Habeas Data right. In particular, the right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality . This is a right to know what type of data are stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data. The other direct predecessor of the Habeas Data right is the Council of Europe’s 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including a right to access their personal data held in an automated database.
The first country to implement Habeas Data was the Federal Republic of Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
. In 1988, the Brazilian legislature voted to introduce a new Constitution, which included a novel right never seen before: the Habeas Data individual complaint. It is expressed as a full constitutional right under article 5, LXXII, of the Constitution.
Following the Brazilian example, Colombia incorporated the Habeas Data right to its new Constitution in 1991. After that, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996
Implementation
- BrazilBrazilBrazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
: The 1988 Brazilian Constitution stipulates that: “Habeas Data shall be granted: a) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative”. - ParaguayParaguayParaguay , officially the Republic of Paraguay , is a landlocked country in South America. It is bordered by Argentina to the south and southwest, Brazil to the east and northeast, and Bolivia to the northwest. Paraguay lies on both banks of the Paraguay River, which runs through the center of the...
: The 1992 Paraguay constitution follows the example set by Brazil, but enhances the protection in several ways. The Article 135 of the Paraguayan constitution states: “Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong or if they are illegitimately affecting his rights.” - ArgentinaArgentinaArgentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
: the Argentinian version of Habeas Data is the most complete to date. The article 43 of the Constitution, amended on the 1994 reform, states that: “Any person shall file this action to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.” - PhilippinesPhilippinesThe Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
: On August 25, 2007, Chief JusticeChief JusticeThe Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
Reynato PunoReynato PunoReynato Puno y Serrano was the 22nd Chief Justice of the Supreme Court of the Philippines. Appointed on December 8, 2006 by President Gloria Macapagal-Arroyo, he was the 22nd person to serve as Chief Justice...
(at the College of Law alumni of Silliman UniversitySilliman UniversitySilliman University is a private research university located in Dumaguete, Philippines. Established in 1901 as Silliman Institute by the Presbyterian Board of Foreign Missions, it was the first American private school to be founded in the country. The University is named after Dr...
in Dumaguete City) announced that the Supreme Court of the PhilippinesSupreme Court of the PhilippinesThe Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...
was drafting the writWritIn common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of Habeas Data. By invoking the truthTruthTruth has a variety of meanings, such as the state of being in accord with fact or reality. It can also mean having fidelity to an original or to a standard or ideal. In a common usage, it also means constancy or sincerity in action or character...
, the new remedy will not only compel militaryMilitaryA military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...
and governmentGovernmentGovernment refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
agentsEspionageEspionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
to release information about the desaparecidos but require access to military and policePoliceThe police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
files. Reynato PunoReynato PunoReynato Puno y Serrano was the 22nd Chief Justice of the Supreme Court of the Philippines. Appointed on December 8, 2006 by President Gloria Macapagal-Arroyo, he was the 22nd person to serve as Chief Justice...
announced earlier on the draft of the writ of amparo -- the SpanishSpanish languageSpanish , also known as Castilian , is a Romance language in the Ibero-Romance group that evolved from several languages and dialects in central-northern Iberia around the 9th century and gradually spread with the expansion of the Kingdom of Castile into central and southern Iberia during the...
for protection—which will prevent military officials in judicial proceedingsProceedingsIn academia, proceedings are the collection of academic papers that are published in the context of an academic conference. They are usually distributed as printed books either before the conference opens or after the conference has closed. Proceedings contain the contributions made by researchers...
to simply issue denials on cases of disappearances or extrajudicial executions. With the writ of habeas corpus, the writ of Habeas Data and the writ of amparo will further help those looking for missing loved ones.