Habeas data

Habeas data is a writ and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”. The remedy varies from country to country, but in general, it is designed to protect, by means of an individual complaint presented to a constitutional court, the data, image, privacy, honour, information self-determination and freedom of information of a person.

Habeas data can be sought by any citizen against any manual or automated data register to find out what information is held about his or her person. That person can request the rectification, actualisation or even the destruction of the personal data held. The legal nature of the individual complaint of habeas data is that of voluntary jurisdiction, this means that the person whose privacy is being compromised can be the only one to present it. The Courts do not have any power to initiate the process by themselves.

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 “[we command] 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. 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.

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