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.
Habeas data is an individual complaint file before a Constitutional Court and related to the privacy of personal data. The first such complaint is the habeas corpus (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. 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. Between 1999 and 2012 several Latin American countries have enacted data protection laws where the procedure to file an habeas data writ is regulated.
- Brazil: 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”.
- Paraguay: 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.”
- Argentina: 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.”
- Philippines: On August 25, 2007, Chief Justice Reynato Puno (at the College of Law alumni of Silliman University in Dumaguete City) announced that the Supreme Court of the Philippines was drafting the writ of Habeas Data. By invoking the truth, the new remedy will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno announced earlier on the draft of the writ of amparo – the Spanish for protection—which will prevent military officials in judicial proceedings 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.
- Andres Guadamuz, "Habeas Data: The Latin American response to data protection", Journal of Information, Law & Technology 2000(2).
- Andres Guadamuz, "Habeas Data vs. the European Data Protection Directive", The Journal of Information, Law & Technology 2001(3).
- Pablo Palazzi, "El Habeas Data en el Derecho Argentino", Alfa-Redi No.4, November 1998.
- Inquirer.net, SC drafting writ of habeas data invoking right to truth
- Data Colombia
- Latin American Data Protection Law Review - Revista Latinoamericana de Proteccion de Datos Personales
- Data Privacy laws blog (data protection in Latin America)