PUBLISHED: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 2 September 2007 Issue
In the current discussions of the Supreme Court on the writ of amparo (a court order to protect the constitutional rights of a person) to compel state agents to look for missing persons in cases of forced disappearances, there is a move to complement this with the legal process so-called writ of habeas data.
In this modern world, personal data are being collected and obtained on persons with impunity from birth to death. Nowadays, a person is compelled or obligated to divulge information about himself or herself in the course of his or her personal dealings and day-to-day transactions. Application for government records, services, social security, clearances, permits and licenses as well as availing of third party private services like bank deposits, investments, credit cards, cable and utilities, school admission, employment, medical care, professional services, and similar other transactions too many to mention here would require individuals to reveal their personal information and circumstances. And people are not wary of the disclosure because they are either too busy or lazy to discern their repercussions or perhaps there is a prevailing trust on the integrity of the system of data collection.
But what if these data base systems are utilized by unscrupulous persons or entities to perpetuate some malicious or criminal ends? Who would, and what would, protect ordinary individuals from these types of attacks and exploitation of their privacies?
A legal and judicial process referred to as the ‘writ of habeas data’ exists in some countries precisely to address the concern. Literally, this Latin term habeas data means “you should have the data”.
Although its form varies from country to country, habeas data is generally a legal relief made available to citizens to protect their individual image, privacy, honor, reputation, information self-determination and freedom of information in a judicial proceeding.
They say that this legal relief is of European origin. For instance, Germany, as early as 1977, has the Persönlichkeitsrecht, a law that covers collection, processing and use of personal data collected by public federal and state authorities, as long as there is no state-regulation, and of non-public offices, as long as they process and use data for commercial or professional aims. In 1981, there was also the 108th Council of Europe Convention on Data Protection that sought to secure individual privacy regarding the automated processing of personal information.
In 1988, Brazil was the first country in the world to implement habeas data as part of its Constitution. Thereafter, other countries followed suit and adopted it also in their respective constitutions: Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994 and Ecuador in 1996.
Spain, a country that constitutionally recognizes the right to privacy, secrecy of communications and data protection, enacted in 1992 the LORTAD or the “Spanish Data Protection Act” that establishes the rights of the citizens to know the personal data contained in computer files with the right to correct or delete false information. The law requires that personal information may only be disclosed to a third party with the consent of the individual.
Many nations in the world that put premium to privacy rights particularly on the disclosure of personal information have caused the creation of a public office referred to as ‘privacy commissioner or ombudsman”.
As early as 2000, when this author wrote his thesis for the National Defense College of the Philippines (NDCP) on the national identification system, he realized the importance of institutionalizing habeas data in the country’s legal system and the creation of a privacy office, and made them as part of his recommendation.
So the next time someone is kidnapped for ransom or becomes a target of nuisance marketing or a victim of harassment, vexation or even a simple annoyance, the immoral and unethical exploitation and use of personal database systems could easily be identified as the root cause. Meanwhile, it is still perfectly legal to do so.
If the Filipino cannot find immediate refuge from Congress to protect their constitutional right to privacy, perhaps the Supreme Court through its rule-making power could provide the appropriate legal and judicial relief.