On June 16, Law No. 21.096 amending the Chilean Constitution was published, thus establishing the protection of personal data as a constitutional right. Through this amendment, personal data protection was established as an autonomous right, but related to the right to privacy found in the same Article 19, N° 4 of our Constitution. By doing so, Chile has joined other Latin American countries, including Colombia, Mexico, and Ecuador, which have included in their respective constitutions the right to protection of personal data or specific provisions which deal with the issue.
This constitutional amendment comes to ratify past jurisprudence of the Constitutional Court which has explicitly recognized the existence of the right to informational self-determination. According to legal doctrine, the right to personal data protection is distinguished from the right to privacy, in relation to how personal data protection imposes legal duties on third parties to make the protection and control of data effective. On the other hand, the right to privacy establishes a right to exclude third parties from our most private sphere (right to be let alone), without necessarily imposing legal obligations, other than to avoid intrusion into our privacy. As such, this would constitute a distinct and autonomous third-generation fundamental right, which is now justly incorporated in our Political Constitution.
With the amendment, the relevant article reads as follows:
Article 19.- The Constitution ensures to every person:
4° The respect and protection of private life and the honor of the person and his family, and furthermore, the protection of personal data. The treatment and protection of this data will be put into effect in the form and conditions determined by law.
To avoid this new constitutional right becoming a simple declaration of good intentions, it will be necessary to have a timely approval of the bill, currently being discussed in Chilean Congress, which seeks to replace our current Data Protection Law (Law N°19.628). This bill seeks to create the essential institutions, with real powers to sanction, that will allow the respective data subjects to exercise effective control over their data.
In order to receive to receive more information regarding this matter, please contact:
Oscar Molina, CIPM