Habeas Data: A Right at Risk?


By: Dr. Luz Eneida Saldaña, attorney, Universidad del Rosario, specialist in Administrative Law and Financial Law.

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The evolution of commercial and technological relationships, the rise of the internet, apps, and social media, and the personal data collected on raffle tickets at shopping malls for cars or trips — among many other examples — constantly expose our private information to becoming nearly public, accessible to all kinds of people, including unscrupulous ones.

As a result, we're routinely bombarded with sales calls, show up on credit blacklists for debts we don't owe, appear as buyers of phones we never bought, and only find out we've been impersonated when a collection agency calls.

That's why it's so important to understand the right we have to access the information protected under what's known as "Habeas Data" — the right every person, whether an individual or a company, has to know how their data was obtained and how it's being used by whoever holds it; to update or correct any information relating to them stored or reported in databases and information bureaus, whether public or private; and to request its deletion or correction if it's false, mistaken, or outdated.

The term "habeas data" comes from Latin and means "to have the data present," and it covers all kinds of data — personal, financial, credit, commercial, and service-related.

In Colombia, this is a constitutional right, enshrined in article 15 of our Constitution, which obliges the State to respect it and enforce respect for it, and regulated through Statutory Law 1266 of December 31, 2008.

From that article, it's worth highlighting:

• The right to personal and family privacy, reputation, and honor.
• The inviolability of correspondence and other forms of communication.
• These can only be intercepted or recorded under a judicial order, in cases and with the formalities the law sets out.
• At the start of each legislative session, the Government must report to Congress on how this power has been used.
• Officials who abuse these measures commit an extremely serious offense, without prejudice to any other liability that may apply.
• For tax or judicial purposes, and in cases of State inspection, oversight, or intervention, accounting books and other private documents may be required to be produced, as set out by law.
• Under rules the statutory law may set, and to prevent terrorist acts, correspondence and other forms of private communication may be intercepted or recorded without a prior judicial order, based on serious grounds, with immediate notice to the Attorney General's Office and subsequent judicial review within thirty-six (36) hours.

In general terms, "Habeas Data" is a constitutional guarantee that protects people against the abusive use of their personal information, especially when it's been obtained unlawfully or fraudulently — which is why it matters to know who manages our data and for what purpose, and to protect both our own information and that of third parties, which in turn calls for proper legal advice.

Is Habeas Data advice expensive? It depends — but one thing is certain: fixing a problem is always more expensive than preventing it.

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