The Supreme Court of Justice of the Nation issues a ruling on personal data matters
On April 30, the Supreme Court of Justice of the Nation (“CSJN”) issued a ruling in the case “Torres Abad, Carmen c/ EN – JGM s/ habeas data” on the validity of the transfer of personal data between state agencies without the consent of the data subject, in a decision of high impact for the protection of personal data in Argentina.
The litigation originated with the habeas data action filed by Carmen Torres Abad against the National State, in order to preserve the confidentiality of the personal data she had provided to the National Social Security Administration (“ANSES“) for the management of her pension benefit (telephone number and email), against its eventual transfer to the Secretariat of Public Communication within the framework of Resolution 166E/2016.
Chamber V of the National Court of Appeals in Federal Administrative Litigation revoked the decision of the first instance and admitted Ms. Abad’s application. This court considered that the processing of personal data without express consent constitutes, in itself, a tort, and held that the exceptions provided for in Law 25,326 must be interpreted restrictively, concluding that the questioned transfer was not duly justified. Against this ruling, the National State filed an extraordinary appeal, in which it maintained the absence of a specific grievance and defended the legality of the transfer based on articles 5 paragraph 2 section b, and 11 paragraph 3 section c of Law 25,326, which authorize the processing and transfer of data between state agencies in the exercise of their powers.
The CSJN declared the appeal admissible in terms of the interpretation of federal regulations and established that, from a literal interpretation, the provisions invoked allowed the transfer of data without the need to obtain the consent of the owner.
However, the CSJN analyzed the constitutionality of these exceptions and concluded that their breadth was unreasonable, since it allowed the rule of consent to be dispensed with, in practice, in a wide universe of cases, disproportionately affecting the rights to privacy and informational self-determination enshrined in Articles 19 and 43 of the National Constitution. The ruling delves into the “right to be left alone”. This approach protects the individual’s solitude and tranquility from unwarranted external intrusions.
The majority decision of the CSJN was to confirm the judgment of the Court of Appeals and declare the unconstitutionality of articles 5 inc. 2 section b and 11 inc. 3 section c of Law 25,326.
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