Habeas Data - History

History

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 “ 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 . Between 1999 and 2012 several latin american countries have enacted data protection laws where the procedure to file an habeas data writ is regulated.