Antoni Farriols Solá
Computer Applications Analyst
María Celia Fernández Aller
Lecturer at the Polytechnic University of Madrid
Diego López Garrido
Executive Vice-President of the Alternativas Foundation
The right to the protection of personal data
Article 18.4 of the Spanish Constitution (EC) states:
“The law shall limit the use of information technology to guarantee the honour and personal and family honour and privacy of citizens and the full exercise of their rights”.
There is no jurist who disputes that Art. 18.4 is the legal basis of the right to the protection of personal data, even if it is not explicitly expressed. The Constitutional Court, taking up the interpretation of international conventions and texts on the matter, has specified the meaning and content of this right in its judgement 292/2000 of 30 November: the right to data protection in Art. 18.4. 4 EC contemplates a fundamental right whose essential content “consists of a power of disposal and control over personal data which empowers the individual to decide which of these data to provide to a third party, be it the State or a private individual, or which may be collected by this third party, and which also allows the individual to know who possesses these personal data and for what purpose, being able to oppose this possession or use. These powers of disposal and control over personal data, which constitute part of the content of the fundamental right to data protection, are legally embodied in the power to consent to the collection, collection and access to personal data, their subsequent storage and processing, as well as their possible use or uses, by a third party, be it the State or a private individual.
And this right to consent to the knowledge and processing, computerised or not, of personal data, requires as indispensable complements, on the one hand, the power to know at all times who is in possession of those personal data and to what use they are subjecting them, and, on the other hand, the power to oppose such possession and uses”.
Internet access
We live in a world accustomed to looking sceptically at the rights that, with so much effort by so many, are recognised in the EC. The move by the Wordcoin company to buy citizens’ irises is a good recent example. To the disappointment of privacy advocates, there is talk of people’s apathy and resignation to this right.
The speed of technological change and the risks it poses to privacy would justify, in our opinion, a minimal updating of the constitutional text with the aim of consolidating rights regardless of the environment in which technological advances take place.
The context in which the idea is born is propitious, since the Charter of Digital Rights was approved in 2021 and a regulatory framework is needed to give it legal force under the regulatory umbrella of the European Union.
The progressive increase in digital dependency means that Internet access is growing proportionally, but not the regulations that should regulate all use to ensure compliance with the provisions of our Constitution.
We would therefore like to highlight two concepts that, in our opinion, should be taken into account in any constitutional amendment:
Data Protection
The main challenges that are pending regulation and that would justify a reform in the EC are:
- A new model of consent management.
- An introduction of the group privacy model.
- A set of necessary measures to strengthen the privacy of minors.
- A privacy protocol in the field of Artificial Intelligence and the use of facial recognition techniques.
- A necessary study of the challenges of neurotechnologies in relation to all of this.
Environment
The fact that these changes have been taking place for years in the so-called digital environment, and that the Charter of Digital Rights must be provided with a regulatory framework, should not give rise to the belief that a reform such as the one we are seeking is justified solely by the evolution from an analogue to a digital environment. We must prepare for different future environments, with devices connected to each other and to our physical reality.
What are we proposing?
Some debates are taking place in relation to proposals to clearly anchor the concept of data protection in the Constitution, and there are experts, not only in Europe, who are in favour of drafting a Digital Constitution. Those of us who subscribe to this article opt instead for a proposal to frame only these two concepts, that of Data Protection and that of the Environment, to recognise the right of citizens to the possession and control of their personal data through the incorporation of a new additional provision in conjunction with another amendment to Article 53 of the EC to strengthen the guarantees, which would not require an aggravated reform (*).
We are aware that this would leave the responsibility for development to the legislature, which will have to be in permanent contact with the technological developments taking place in society. At the same time, social organisations will have to nurture ideas and monitor that this dynamic is carried out.
In conclusion
We value the European regulations and our legislation positively, we recognise the increase in guarantees that a constitutional amendment such as the one we are advocating would bring about, but we believe that having a regulatory framework is not enough. To give an example, the International Labour Organisation itself has stressed that these challenges should be taken up by society as a whole, implementing the necessary controls through social dialogue between trade unions and employers’ organisations down to the workplace level; guaranteeing the participation of civil society and public institutions in this whole debate.
We therefore believe that the best way to make progress towards making internet access a human right in which privacy is respected is to combine the regulatory framework with social dialogue.
(*)This is a very rigid reform procedure, reserved for particular matters, the total revision of the Constitution or a partial revision that affects matters of the preliminary title, the fundamental rights of the first section, the second chapter and the Crown.
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