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I. Legal Framework

Constitutional privacy framework

Different articles of the Constitution of Ecuador1 protect the personal and family intimacy, the inviolability and confidentiality of correspondence, the inviolability of the home, freedom of the press, and the freedom of opinion and expression regardless of the medium of communication.2 Article 23 of the Constitution specifically recognizes and guarantees the following rights to individuals:

  • The right to honor, good reputation, personal and family privacy (intimidad personal y familiar);3
  • The protection of the name, image and voice of the individual;4
  • The freedom of conscience and religion, individually or as a member of a group, in public or private. Individuals can freely practice their religion;5
  • The inviolability and confidentiality of correspondence. Correspondence can only be withheld, opened and examined in cases stipulated by law. Confidentiality will be maintained for related matters that may lead to the examination of personal information. The same principle will be observed with any other type or form of communication;6 and,
  • The inviolability of the home. No one can enter or inspect an individual's home without either authorization from the person concerned or a judicial order, as established by law.7

The Law of Constitutional Control creates habeas data. Habeas Data can be used by anyone - citizens and foreigners, public and private entities - wishing to access documents, databases or reports about themselves or about the properties they hold. Citizens who want to know the use and purpose given to their data, are able to use habeas data to request information about them.8

The purpose of habeas data is to ensure that the data controller provides the data subject with complete, clear, and truthful information; that the data subject be able to obtain direct access to their information; that the data controller correct, delete and not disclose information to third parties; and that the data subject obtain certifications or verifications that the data controller has rectified, eliminated, or not disclosed, the information.9

Habeas data does not apply where it infringes upon professional confidentiality, where it could obstruct justice, or where the documents solicited are secret for reasons of national security. It is not possible to delete data when the law requires that public or private records be maintained.10

The Law of Constitutional Control (Ley del Control Constitucional)11 was enacted on July 2, 1997, before the new Constitution of 1998 came into force.12 On July 9, 2001, the Constitutional Court proposed to the National Congress a new Project of Organic Law of the Constitutional Court (Proyecto de Ley Org√°nica del Tribunal Constitucional) that should be in accordance with the new Constitution and will replace the Law of Constitutional Control. The National Congress has not approved the bill yet.