Data Protection and Habeas Data in Guatemala: The Constitutional Court’s Case Law

Personal data protection in Guatemala is now one of the most pressing concerns for individuals and companies alike. The growing use of technology in everyday life has created multiple risks for the protection of human rights. In this context, the protection of personal data —in relation to social media, websites that capture user information and entities that handle private records— is one of the most recent legal interests safeguarded by modern legal systems. This right has been built by constitutional courts over the years on the basis of the notion of privacy (vie privée, privacy).

I- Judicial activism in data protection matters

As disputes on this subject increase, particularly in countries such as Guatemala where no specialized legislation exists, constitutional courts —especially in Latin America— have come to rely on what is known as “judicial activism” in the exercise of their powers of constitutional review and protection of fundamental rights. This practice usually takes the form of atypical, modulated or structural rulings through which these courts, acting as the ultimate interpreters of the Constitution, produce positive effects to protect rights derived from privacy where regulation is absent.

II- Informational self-determination according to the Constitutional Court

Guatemala has no statute, regulation or international treaty setting out the parameters for protecting this right. Against that backdrop, the Constitutional Court of Guatemala has developed several criteria across different constitutional proceedings. When deciding cases involving data processing, the Court has held that, in order to adequately protect the rights to privacy and intimacy online, it is necessary to recognize the individual’s right to informational self-determination[1]. Notably, the concept of informational self-determination (recht auf informationelle Selbstbestimmung) used by the Court originated in the Federal Republic of Germany, in the ruling issued by the German Federal Constitutional Court on December 15, 1983, which addressed the issues raised by the Population Census Act. In that ruling, the court held that the general right of personality includes the individual’s power to decide, in the exercise of self-determination, what aspects of their own life they wish to disclose[2].

III- What is habeas data and how does it apply in Guatemala?

In Latin America, the procedural remedy known as habeas data was developed to protect this right. In some countries, habeas data is regarded as a constitutional guarantee aimed at protecting the right to informational self-determination, which allows individuals to exercise the ARCO[3] rights (access, rectification, cancellation and objection) recognized by international data protection treaties in order to correct or delete recorded information [4]. In Guatemala, the Constitutional Court clarified that, although habeas data is recognized as a type of proceeding, it is essentially administrative in nature and may therefore only be used to challenge the content and handling of data held by State entities[5]. Accordingly, the Court determined that the appropriate mechanism for data protection is the filing of a constitutional amparo action[6].

IV- Case law on data protection in Guatemala

The case law issued to date is summarized below:

Is there a right to personal data protection in Guatemala?