I. Legal Framework
Constitutional privacy framework
Different articles of the 1993 Constitution protect the privacy and secrecy of communications and private documents, the inviolability of the home, the freedom of the press, freedom of expression, and access to public information. Article 2 states, "Every person has the right:
To be assured that information services, whether or not they are computerized, public or private, will not release information affecting one's personal and family intimacy.
To his honor and good reputation, personal and family intimacy, and his own voice and image. Every person affected by inaccurate or injurious statements contained in any medium of social communication has the right to free, immediate and proportional1 rectification, notwithstanding other legal responsibilities.
To the inviolability and secrecy of private documents and communications. Communications, telecommunications, or documents stemming therefrom, may only be opened, seized, intercepted, or tapped with a bench warrant and pursuant to all the guarantees provided by law. Confidentiality must be maintained regarding all matters not related to the reason of the search. Private documents obtained in violation of this principle are not admissible before a court. Books, receipts, as well as accounting and administrative documents are subject to inspection or auditing by the proper authorities, in accordance with the law. They may not be removed or seized without a court order.
To the inviolability of his home. No one may enter the home or conduct any investigation or search without authorization from the inhabitant or a court warrant, except in the case of flagrante delicto or of a very serious danger. Exceptions for reasons of health or serious risk are governed by law.
To freedom of conscience and religion, individually or as a member of a group. No one may be persecuted for his ideas or beliefs. There is no such thing as a crime of opinion. . . .
To freedom of information, opinion, expression, and the dissemination of thoughts through the spoken or written word or in images, by any means of social communication, and without previous authorization, censorship, or impediment whatsoever, and in accordance with the law. Crimes committed by means of books, the press, or other media of social communication are outlined in the Penal Code and will be tried in a court of law. Any action that suspends or closes any organ of expression or prevents its free circulation also constitutes a crime. The right to inform and express opinions includes the right to find means of communication.
To request information that one needs without disclosing the reason, and to receive that information from any public entity, within the period specified by law, at a reasonable cost. Information that affects personal intimacy and that is expressly excluded by law or for reasons of national security is not subject to disclosure. Banking secrecy and confidentiality concerning taxes may only be lifted at the request of a judge, the National Prosecutor, or a congressional investigative commission in accordance with the law and provided that such information relates to the case."2
All these constitutional rights are included, in one way or another, in Article 1, which provides that "the protection of the person and the respect for his dignity are the supreme goal of society and the State."
The right of informational self-determination is partially protected by the action of habeas data. In Peru, habeas data is used to refer to the constitutional procedure which protects not only the right of a person to access information about himself (right to informational self-determination (Constitution, Article 2.6), but also the right to access whatever information an individual may require from any public body (freedom of information and access to government records (Constitution, Article 2.5).3 However, habeas data is a redress mechanism used only after the damage has been done.4 In several sentences, the Constitutional Tribunal has mentioned the right of informational self-determination, which is not specifically mentioned in the Peruvian Constitution, as "one that gives an individual the ability to request the rectification of inexact information about himself, contained in databases or registries."5
On May 28, 2004, the Code of Constitutional Procedures was enacted. It regulates the procedures of habeas corpus, amparo, and habeas data, established by Articles 200 and 202.3 of the Constitution.
- 1. Proportionate to the degree of fault.
- 2. http://www2.congreso.gob.pe/sicr/RelatAgenda/constitucion.nsf/constitucion
- 3. Const. Per√∫, article 200, subsection 3. Habeas data provision is a constitutional guarantee that protects against any act or omission by whatever authority, whether a state employee or a private person, that would reduce or jeopardize the rights of the individual as contained in Article 2, Subsections 5-6 of the Peruvian Constitution.
- 4. http://www.tc.gob.pe/jurisprudencia/1998/0666-1996-HD.html
- 5. http://www.tc.gob.pe/jurisprudencia/2003/0700-2003-HC Resolucion.html