I. Legal framework
Constitutional privacy framework
The Constitution of Venezuela has been written in a manner designed to protect human rights.1 The interest of the people guides the constitutional text, in which, according to Articles 282 and 48,3 every person has the right to access and manage information on himself, contained in official or private records; to request to the competent court for the update, correction or destruction of any records that are erroneous or unlawfully affect the petitioner's right; and to ensure the secrecy and inviolability of his private communications, regardless of their forms. The Venezuelan legal framework, however, presents inconsistencies with respect to the inclusion of these concepts in other legal instruments. One of these is the Postal Law, in force since 1928, which does not contemplate the inviolability and confidential character of private correspondence.
Articles 604 and 1435 of the Constitution refer specifically to data processing and privacy in electronic communications. Every person has the right to know the status of procedures in which he has a direct interest, as long as this does not violates national security or interferes with ongoing law enforcement investigations. Article 60 establishes that every person has the right to his or her honor, private life, intimacy, self-image, confidentiality and reputation.
The Constitution sets out the freedom of expression as a human right, inalienable, free and plural, and without any type of censorship. It also includes a special provision to allow and promote access to means of communication by children and adolescents (Articles 57 and 58). These articles prohibit anonymity, war propaganda messages, as well as those that show religious intolerance. The right to information persists even during "states of exception," during which the right of citizens to "true, opportune and impartial information without censorship" will not be suspended.6
The Constitution also integrates knowledge, communication and creation within the concept of Cultural and Educational Rights (Articles 98, 101, 110 and 124)7 in which it considers Internet databases and public libraries to belong to the public interest. The Internet is considered a public service. These articles also reflect an interest in building a legal framework to protect indigenous languages and traditions (e.g., the registration of patents or copyrights concerning indigenous patrimony is prohibited), as well as other folkloric values, authorship and scientific and technological innovations. In the same way, the norms set forth in the Law on Social Responsibility for Radio and TV (the implementation of a section of Article 110) promote the necessity to protect Venezuelan values above foreign values in the programming of mass communications, as well as implement measures ensuring that persons with hearing disabilities will be able to enjoy programming.
Statutory rules on privacy
The main laws that regulate telecommunications, data and privacy are: Telecommunications Privacy Protection Law; the Organic Law for Telecommunications; Data Message and Electronic Signature Law; Special Law against Information Crimes; Social Responsibility in Radio and Television Law; and Public Function and Statistics Law, which regulates the national statistics system. In the justification for the Proposal for the Organic Law on the Use of Information Technologies in the State, other laws of particular interest are also mentioned, such as the Public Administration Law, the Financial Administration Law, the Organic Tax Code and the Organic Penal Process Code.
The discussion on the first draft of the project of Law for the Protection of Data and Habeas Data (LPDHD) has stopped. This project intended to guarantee and protect personal data stored in archives, registries, data banks and other data information systems, public or private, and provided data subjects with access, correction and deletion rights.8
The Telecommunications Privacy Protection Law establishes protection of the privacy, confidentiality, inviolability and secrecy of communications.9 This norm stipulates distinct sanctions for the recording, imposition, interruption or hindering of communications between parties, in an arbitrary, clandestine or fraudulent manner, as well as the installation of instruments aimed destined to record or hinder communications between parties unless through an authorization in compliance with the law. It also sanctions the disturbance of the peace of mind of a party through the use of information obtained through illegal procedures. The norm authorizes the police to carry out necessary surveillance, but limits them to investigation of crimes against the security or independence of the State, and with previous authorization of a judge, as stipulated in the Organic Psychotropic and Stupefacient Drug Law (Ley Orgánica sobre Sustancias, Estupefacientes y Psicotrópicas) as well as in regulations related to kidnapping and extortion crimes.10
The principal objective of the Organic Telecommunications Law, according to its Article 2,11 is based upon the defense of previously expressed constitutional principles, which define the right to communication and information, as well as privacy and personal honor, as human rights]. In the same spirit, the Organic Telecommunications Law (LOT) also promotes the implementation of community media. Among other aspects, a third large area of interest of the LOT is the inviolability of personal communications. With respect to service providers, the LOT has created an organization responsible for generating mechanisms for the protection of consumers and users of services, called the National Commission of Telecommunication. This organization also regulates compliance with the Universal Service Standards, measures adopted in the public interest and for the protection of personal data.12
Decree 1204, the Data Message and Electronic Signature Law13 (LSMDFE), is the instrument that recognizes the legal validity of signatures and electronic messages.14 Although the mechanism has not yet been implemented, two cases15 that refer to this law to validate constitutional protection requested via electronic mail have already been presented to the Supreme Court. The Supreme Court made a progressive interpretation of the Organic Law of Constitutional Protection.16 It admitted that, based upon the LSMDFE, telegraphic media, electronic mail and the Internet were media of equal probative value. Decree 3335, which partially reforms the LSMDFE with the goal of regulating the accreditation of electronic certification service providers,17 entered into force on December 14, 2004. The LSMDFE also recognizes foreign electronic certificates.18
The Special Law against Information Crimes19 regulates crimes against information systems, economic property and patrimony, personal privacy and communications, without including spam. Illegal access to systems, interference, signal interception, unauthorized use, sabotage and damage to systems and data, as well as the creation and introduction of viruses are also considered crimes (Article 8). The law considers as crimes: spying, falsification of documents, fraud and unauthorized use of credit cards, etc. It also covers the violation of personal data and information privacy, whether through damage or the unauthorized destruction of another's data in a computer system. The violation of communication privacy is defined as the access, capture, interception, interference, reproduction, modification, detour or elimination of any data message or transmission signal, or third party's communication, as well as the inappropriate disclosure of personal information. Chapter IV deals with crimes against children and adolescents by criminalizing the publication and diffusion of pornography. The law, however, does not regulate "snuff films"20 and does not consider them as sexual practices that degrade and violate a woman's honor (Article 77 of the Constitution; the Law on Violence against Women and Family).
On March 21, 2005 the National Telecommunications Commission of the Ministry of Infrastructure (CONATEL), (Comisión Nacional de Telecomunicaciones del Ministerio de Infraestructura) passed the Administrative Resolution No. 572 requiring that all personal data, including complete name, identification card number, home address, fingerprints and signature must be collected from buyers of cellular phones and landlines and delivered to government officials upon official request. It also requires that a registry of all traffic data, including initiating number, called number, duration of call and geographic details be maintained by the carrier.21
- 1. http://www.constitucion.ve/
- 2. Article 28: "Anyone has the right of access to the information and data concerning him or her or his or her goods which are contained in official or private records, with such exceptions as may be established by law, as well as what use is being made of the same and the purpose thereof, and to petition the court of competent competence for the updating, correction or destruction of any records that are erroneous or unlawfully 'affect the petitioner's right. He or she may, as well, access documents of any nature containing information of interest to communities or group of persons. The foregoing is without prejudice to the confidentiality of sources from which journalist receives information, or law may determine secrecy in other professions."
- 3. Article 48: "The secrecy and inviolability of private communications in all forms are guaranteed. The same may not be interfered with except by order of a competent court, with observance of applicable provisions of law and preserving the secrecy of the private issues unrelated to the pertinent proceedings."
- 4. Article 60: "Every person is entitled to protection of his or her honor, private life, intimacy, self-image, confidentiality and reputation. Law shall restrict the use of electronic information in order to guarantee the personal and family intimacy and honor of citizens and the full exercise of their rights."
- 5. Article 143: "Citizens have the right to be informed by Public Administration, in a timely and truthful manner, of the status of proceedings in which they have a direct interest, and to be apprised of any final decisions adopted in the matter. Likewise, they have access to administrative files and records, without prejudice to the limits acceptable in a democratic society in matters relating to internal and external security, criminal, investigation and the intimacy of private life, in accordance with law regulating the matter of classification of documents with contents, which are confidential or secret. No censorship of public officials reporting on matters for which they are responsible shall be permitted."
- 6. Article 337: "The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. Expressly defined as such are circumstances of a social, economic, political, natural or ecological nature, which seriously affect the security of the Nation, institutions and citizens, in the face of which the powers available to cope with such events are insufficient. In such case, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the right to life, prohibition of incommunicative detention or torture, the right to due process, the right to information and other intangible human rights."
- 7. http://www.vheadline.com/readnews.asp?id=6831
- 8. http://www.cpsr-peru.org/bdatos/venezuela/privacidad/
- 9. http://www.garciavalentiner.com/espanol/LSPPC.doc
- 10. http://www.citel.oas.org/newsletter/2006/junio/seguridad-ven_e.asp
- 11. http://www.conatel.gov.ve
- 12. Organic Telecommunications Law, Articles 20 and 50.
- 13. http://portal.cnti.ve/cnti_docmgr/sharedfiles/LeyMensajesDatosFirmasElec...
- 14. Article 8: "Cuando la ley requiera que la información conste por escrito, ese requisito quedará satisfecho con relación a un Mensaje de Datos, si la información que éste contiene es accessible para su ulterior consulta." ("When the law requires that the information be in writing, this requirement will be satisfied by a data message, if the information it contains is accessible for future consultation.")
- 15. http://www.tsj.gov.ve/decisiones/scon/Abril/523-090401-00-2317%20.htm
- 16. Article 16: "La acción de amparo es gratuita por excelencia. Para su tramitación no se empleará papel sellado ni estampillas y en caso de urgencia podrá interponerse por vía telegráfica. De ser así, deberá ser ratificada personalmente o mediante apoderado dentro de los tres (3) días siguientes. También procede su ejercicio en forma verbal y, en tal caso, el Juez deberá recogerla en un acta" ("The action of protection is free by definition. Its processing will not require sealed stationary nor tax stamps and, in case of urgency, the intervention may be made by telegraph. In this case, it must be ratified personally or by power of attorney within the following three days. It may also proceed in oral form and, in such a case, the judge should formalize it in an Act").
- 17. http://www.cavecome.org.ve/bin_cavecome/main/templates/seccion.asp?tipo=...
- 18. For an electronic document to be valid, it must fulfill some requirements, according to José Ovidio Salgueiro: "a data message which presents all of the elements of the identification requirement, which is to say, one which has an electronic signature which has generated an electronic certificate that has been provided by a service provider certified and accredited by the Superintendent of Electronic Certification Services (acronym in Spanish SUSCERTE), is one which will have the same validity and probative effectiveness that the law grants to documents signed in autograph form." Id.
- 19. http://www.alfa-redi.org
- 20. A "snuff film" is a video, sometimes pornographic, that allegedly depicts actual murder, produced for entertainment purposes.
- 21. http://www.conatel.gob.ve/downloads/marco_legal/REQUERIMIENTO%20INFORMAC...