I. Legal Framework
Constitutional privacy framework
The Political Constitution of the Republic of Guatemala has established rules that cover individual human rights, but does not expressly defines "privacy" as a human right. The Constitution nevertheless protects some aspects of the right to privacy as follows:
- Correspondence and other forms of private communication are inviolable. They may only be intercepted or recorded pursuant to a court order and to formalities established by law. The secret of correspondence is guaranteed as well as phone communications, radio transmissions, telegrams and other products of modern technology. For tax or legal purposes and for cases of inspection, supervision, and state intervention, the disclosure of accounting records and other private documents may be required within the limits provided by law. The documents and information obtained against this article cannot be used and cannot produce evidence in a court.1
- Every administrative act of the government is public. Any citizen has the right to obtain, at any time, reports, copies, photocopies, reproductions and certifications that he has requested. Every person has the right to access public documents, except for military and diplomatic documents or information.2
- The administration of public files is a duty of the State and it is a right of the citizens to get access to them. Every person has the right to know and obtain any information about himself that contains any public record or database, as well as has the right to know the purpose of these records, and to correct and update them. The processing of records about political affiliations is prohibited, except if it is done by electoral authorities and political parties.3
The Guatemalan Constitution also amplifies the scope of the Constitution and acknowledges that privacy can be protected as an individual human right in Article 44:
Rights inherent to the human (individual human rights): the rights and guarantees that have been established in the Constitution do not exclude others, that although not expressly mentioned in the Constitution, are inherent to the human person.4
Statutory rules on privacy
There is no comprehensive data protection legal framework applicable to the private sector. The Penal Code5 establishes penalties for the following offenses: prohibited records,6 the manipulation of information,7 and the abusive use of information.8
There is no data protection law. Habeas data9 has not expressly been included in the Constitution or other applicable law in Guatemala, but some principles of habeas data can be inferred from the Constitution and the Guatemalan legal framework, even though there are no specific laws or rules that regulate habeas data. There is no data controller or other administrative entity that controls the data collection and use of private information.
- 1. http://www.georgetown.edu/pdba/Constitutions/Guate/guate85.html
- 2. Id. at Article 30.
- 3. Id. at Article 31.
- 4. Constitutional Court Journal No. 39, case No. 334-95, page No. 52, sentence of March 26, 1996.
- 5. http://www.oas.org/juridico/mla/sp/gtm/sp_gtm-int-text-cp.pdf
- 6. Article 274 D of the Penal Code establishes the following: "Prohibited Records: will be penalized with prison of six months to four years or a criminal penalty of two hundred to one thousand Quetzales, the person who creates a data base or electronic records that can affect the intimacy of any person."
- 7. Article 274 E of the Penal Code provides: "Manipulation of information. It will be sanctioned with prison from one to five years and a criminal penalty of five hundred to three thousand Quetzales, the person who uses electronic records or software in order to hide, forge or alter the accounting information or the economic situation of an individual or an entity (Corporation)."
- 8. Article 274 F provides: "Use of information. The penalty of imprisonment for six months to two years and the criminal penalty of two hundred to one thousand Quetzals will be imposed to the person who, without authorization, uses without proper authorization from its owner, a database or electronic information, or who gets access by any means to this database or electronic data without authorization."
- 9. Habeas data is the right to know, update, and rectify information gathered about individuals in data banks and the records of public and private entities.