Isabella Carter
The Brazilian Constitution of 1988 grants citizens the right to habeas data, a legal mechanism that enables access to personal information gathered by governmental bodies. This right was included in the constitution in response to social demands after the end of the military dictatorship. Habeas data, which translates from Latin as [we command] you have the data, or you [the data subject] have the data, is designed to protect an individual's data, image, privacy, honour, information self-determination, and freedom of information. It allows citizens to request access to their personal data held in manual or automated databases, as well as the rectification, update, or destruction of inaccurate or illegally obtained data. The inclusion of habeas data in the Brazilian Constitution has influenced other Latin American countries to implement similar data protection instruments, with Colombia, Paraguay, Peru, Argentina, and Ecuador following suit in their respective constitutions.
| Characteristics | Values |
|---|---|
| Year of inclusion in the Brazilian Constitution | 1988 |
| Reason for inclusion | To protect the right to privacy and access to personal information gathered by governmental bodies |
| Other names | Writ of Habeas Data, Mandado de Segurança |
| Constitutional right | Expressed as a full constitutional right under Article 5, LXXII, of the constitution |
| Legal nature | Voluntary jurisdiction, meaning that the person whose privacy is being compromised can be the only one to present it |
| Purpose | To protect data, image, privacy, honour, information self-determination and freedom of information of a person |
| Scope | Can be sought by any citizen against any manual or automated data register to find out what information is held about them |
| Use | To request the rectification, update, clarification, or destruction of personal data held |
| Cost | Costly remedy as a petition must be presented by a lawyer after an unsuccessful data request from the defendant |
| Speed | Slow remedy as a petition must be presented by a lawyer after an unsuccessful data request from the defendant |
| Influence | Influenced other Latin American countries to implement similar data protection instruments |
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What You'll Learn
- To protect individual privacy and freedom of information
- To grant access to personal information held by government bodies
- To enable individuals to correct or update their personal data
- To ensure transparency in data gathering and processing
- To provide a legal remedy for individuals whose privacy is compromised
To protect individual privacy and freedom of information
The Brazilian Constitution of 1988 grants citizens the right to habeas data, a legal mechanism that enables access to information held by governmental bodies. This right was introduced in response to social demands following the end of the country's military dictatorship.
Habeas data, which translates from Latin as " [we command] you have the data," or "you [the data subject] have the data," is a powerful tool for protecting individual privacy and freedom of information. It allows citizens to request access to their personal data held in governmental or public databases and to seek rectification, updating, or destruction of inaccurate or illegitimately obtained data.
In Brazil, the right to habeas data is expressed as a full constitutional right under Article 5, LXXII, of the 1988 Constitution. This article stipulates that habeas data shall be granted:
- To ensure the knowledge of information related to the person of the petitioner, contained in records or databases of government agencies or agencies of a public character;
- For the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.
The Brazilian Constitution also grants "mandado de segurança coletivo," which can be filed by any political party represented in the National Congress, trade union, class association, or legal association running for at least a year defending its members or associates. This collective security measure adds a layer of protection for individuals' privacy and information freedom.
The inclusion of habeas data in the Brazilian Constitution has had a significant impact on Latin American countries, with many adopting similar data protection instruments. Following Brazil's example, Colombia incorporated the right to habeas data into its constitution in 1991, followed by Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996. The influence of Brazil's habeas data extends beyond its borders, shaping the legal landscape of the region and empowering citizens to protect their privacy and freedom of information.
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To grant access to personal information held by government bodies
The Brazilian Constitution of 1988 grants citizens the right to access personal information held by government bodies through the inclusion of habeas data. This right, expressed as a full constitutional right under Article 5, LXXII, of the constitution, allows individuals to request access to information related to themselves that is stored in governmental or public databases. It also enables them to correct or update their data or request annotations or clarifications regarding pending litigation.
The inclusion of habeas data in the Brazilian Constitution was a response to social demands for greater privacy protections and access to personal information gathered by governmental bodies following the end of the country's military dictatorship. The writ of habeas data, introduced in the 1988 Constitution and regulated by Law No. 9.507 of 1997 (the Habeas Data Law), has influenced other Latin American countries to implement similar data protection instruments.
The principle of access to information is strongly emphasised in Brazilian law and is based on the Habeas Data writ. This writ can be addressed to any database that collects information transmitted to third parties or not exclusively used by the governmental agency that generated it. However, it is considered a costly and slow remedy, as a petition must be presented by a lawyer after an unsuccessful data request.
The Brazilian Constitution also includes other instruments for protecting individual rights, such as the "mandado de segurança," which aims to protect constitutional rights, and the "mandado de injunção," which ensures the feasibility of practising constitutional rights. The Constitution grants access to information as a fundamental right and establishes consumer protection in Article 5 XXXII and Article 170 V.
The Habeas Data writ has been interpreted as an individual's right to know what type of data is stored about them in manual and automated databases, implying transparency in data gathering and processing. This right to information self-determination was influenced by the German constitutional tribunal and the Council of Europe's 108th Convention on Data Protection of 1981. Brazil was the first country to implement habeas data in its constitution, and its example has been followed by several other Latin American countries.
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To enable individuals to correct or update their personal data
The Brazilian Constitution of 1988 introduced habeas data as a legal mechanism to protect the right to privacy and enable individuals to access and rectify their personal data held by governmental bodies. This right is expressed in Article 5, LXXII of the Constitution, which states that habeas data shall be granted:
> "...to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative."
The inclusion of habeas data in the Brazilian Constitution was a response to social demands for greater transparency and control over personal information following the end of the military dictatorship. The writ of habeas data allows individuals to request access to their personal data stored in governmental or public databases and to correct, update, or clarify this information if it is inaccurate or incomplete.
The Brazilian Constitution grants individuals the right to access and rectify their personal data without having to go through a confidential judicial or administrative process. This means that individuals can directly petition for the correction or updating of their data, rather than having to rely on a court or administrative body to make these changes on their behalf. This provision empowers individuals to take control of their personal information and ensure its accuracy and relevance.
The implementation of habeas data in Brazil has had a significant impact on data protection laws in Latin America. Following Brazil's lead, several other Latin American countries, including Colombia, Paraguay, Peru, Argentina, and Ecuador, have incorporated habeas data into their constitutions or enacted data protection laws that regulate the procedure for filing habeas data writs. This regional influence underscores the importance of habeas data in advancing privacy rights and data protection standards in the Latin American context.
In conclusion, the inclusion of habeas data in the Brazilian Constitution was a pivotal step towards empowering individuals to correct or update their personal data. By granting individuals the right to access and rectify their personal information held by governmental and public entities, Brazil set a precedent that inspired other nations to strengthen their data protection frameworks, ultimately enhancing the privacy rights of their citizens.
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To ensure transparency in data gathering and processing
The Brazilian Constitution of 1988 grants citizens the right to habeas data, a legal mechanism that enables access to information held by governmental bodies. This was established in response to social demands following the end of the country's military dictatorship.
Habeas data, which translates from Latin as " [we command] you have the data," or "you [the data subject] have the data," is a powerful tool for ensuring transparency in data gathering and processing. It allows citizens to request access to their personal data stored in government or public databases and to seek rectification, update, or destruction of that data if it is inaccurate or outdated.
The Brazilian Constitution stipulates that habeas data shall be granted:
> a) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character;
> b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.
This right to information self-determination ensures that citizens know what type of data is stored about them and how it is being used. It also provides a means to address any inaccuracies or outdated information, protecting individuals' privacy and honour.
The Habeas Data writ has influenced other Latin American countries, which have implemented similar data protection instruments. For example, Paraguay's 1992 constitution follows the Brazilian example, enhancing protection by allowing citizens to access information and understand its use and purpose. It also enables citizens to request a judge to order the updating, rectification, or destruction of entries that are incorrect or illegitimately affecting their rights.
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To provide a legal remedy for individuals whose privacy is compromised
The Brazilian Constitution of 1988 grants the right to habeas data, which can be used as a legal remedy by individuals whose privacy has been compromised. The literal translation of habeas data from Latin is " [we command] you have the data," or "you [the data subject] have the data." This right ensures that individuals can access information related to themselves that is stored in governmental or public databases. It also allows for the correction, update, or destruction of personal data.
The inclusion of habeas data in the Brazilian Constitution was a response to social demands after the end of the military dictatorship. The Constitution grants access to personal information gathered by governmental bodies, providing a mechanism for individuals to protect their privacy and ensure the accuracy of their data. This right is established in Article 5, LXXII, of the Constitution, which states that habeas data shall be granted:
> "a) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative."
The writ of habeas data has been further regulated by Law No. 9.507 of 1997, also known as the Habeas Data Law. This law provides a legal framework for individuals to exercise their right to access and rectify their personal information. The principle of access is strongly formulated in Brazilian law, and it is based on the Habeas Data writ. However, it is important to note that filing a Habeas Data writ is a costly and slow process, as it requires a lawyer's involvement.
The right to habeas data in Brazil has influenced other Latin American countries, such as Colombia, Paraguay, Peru, Argentina, and Ecuador, to incorporate similar provisions into their constitutions. These countries have recognized the importance of protecting individuals' privacy and providing legal remedies for privacy breaches. Additionally, instruments like the Credit Information Law and the Access to Information Law have been developed in Brazilian law to address the increasing use of electronic data processing and further enhance data protection.
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Frequently asked questions
The Habeas Data writ was included in the 1988 Brazilian Constitution to protect the right to privacy and grant access to personal information gathered by governmental bodies.
The literal translation of habeas data from Latin is " [we command] you have the data," or "you [the data subject] have the data."
The writ of habeas data allows citizens to find out what information is held about them in manual or automated databases and request the rectification, update, clarification, or destruction of their personal data.
The inclusion of habeas data in the Brazilian Constitution was influenced by the right to information self-determination created by the German constitutional tribunal and the Council of Europe's 108th Convention on Data Protection of 1981.
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