Data protection: Latin-America and Covid-19

maio 2020

Similar to the permanent tension that exists with the right to Freedom of Expression, this dialectic between Privacy and liberties in the treatment of information has been reproduced since the “revolution of social networks”, in a massive and accelerated way. Data Protection has its most notable challenges with the massive collection for commercial purposes, for different uses. And it is that, by means of new technologies, it is possible to go more and more easily from the mere determination of tastes and preferences of individuals to the manipulation of a collective unconscious.

The exponential way in which images, comments and news (quite often lacking veracity) circulate through social media quickly dilutes the possibility of preventing misconceptions from occurring, both about facts and subjects. In addition to this, worth mentioning is the difficult, and often impossible, task of rolling back the effects that may entail an irreparable mental, emotional, material and relational damage. It is almost inherent to the society in which we live. To this must be added the constant interference in our areas of privacy through the IOT, the “wearables”, “apps” and Artificial Intelligence, all of which is the consequence of a global empowerment of Big Data.

COVID-19 and its pandemic effects force us, by logical balancing with the supreme value of life, to accept extra-limitations in the transfer and treatment of health data at a global level. I believe that the necessary opening of these limits, in order to produce quick and efficient solutions, is commonly accepted. However, this implies the need to carefully handle such delicate information in the market field. Not to mention that the gathering of this sensitive information sometimes pursues other less clear and acceptable purposes.

In the regulatory context of Latin America, we call sensitive or special category data that information of a personal nature whose inappropriate treatment, due to the very nature of its content, may constitute discrimination or cause direct or indirect injury to fundamental personality rights. For example, our honor or our image. Thus, in general, those that reveal our racial or ethnic origin, political opinions, religious, spiritual, philosophical or union affiliation convictions, preferences or sexual orientation are considered as such. Same thing with our information related to health conditions, genetic and biometric data. That is, not identical but pretty symmetrical to the content of article 9, section 1 of the General Data Protection Regulation of the European Union.

The different legislations in the region include, in a similar way, the fundamental Right to Privacy, whose standard formula, as to its principles, can be found in most of the constitutional pacts and, mainly, in article 11 of the American Convention on Human Rights “(…) 2. No one may be subjected to arbitrary or abusive interference with his private life, that of his family, his home, or his correspondence, nor of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attack”.

Those countries of the region where there are already specific regulations for the Protection of Personal Data regulate this issue in a similar way (following, due to historical influence, the basic lines of Continental Law). Such is the case of Argentina, Colombia, Costa Rica, Mexico, Peru and Uruguay. All the systems of these countries have regulations and government bodies established to protect self-determined information and the exercise of ARCO rights, which may include the Protection of Personal Data as a fundamental right. Likewise, said public entities have administrative powers, or by referral to jurisdictional faculties, for the imposition of patrimonial or material sanctions in the operation of databases. The foregoing, notwithstanding the possibility of filing civil actions in ordinary or contentious-administrative proceedings aimed at the repair of property damage, on the aforementioned rights to honor, image or other personality.

When the tide goes out and the necessary application of exceptions to the control in the treatment of sensitive health data returns to its original channel, there will be much to control. We will most likely encounter many more activities upon which strict controls must be exercised, to prevent the sources developed during this time of COVID-19 from being misused.

Mauricio J. Garro