3 Specific Problems Concerning Data Protection
on the Internet
3.1 Personal Data Processed by Electronic Means
With regard to the general regulation of data protection and other acts—that cover
certain aspects of personal data processed by electronic means—there is no specific
Cape Verdean legislation that broadly encompasses services provided from a distance by electronic means, protection of minors
109 or that recognises the right of
erasure of personal data processed by electronic means, tough, as will be seen, this
can be a protective measure taken by supervisory entities. Notwithstanding, this does
not present an unsurmountable problem, because as far as all Cape Verdean
Courts are organs of rights protection, taking into consideration that constitutional
norms which recognise civil and political rights are directly applicable even without
the interposition of the legislative body, and in light of the fact that courts are obliged
to interpret existent ordinary law in conformity with those constitutional norms,
Pretorian constructions departing from the Basic Law can solve some of the eventual
lacunae in this domain.
In some cases, Esignature and Ecommerce Contracts Act of 2007
110 and the
Telework Act of 2018,
111 legislation applicable to electronic matters, includes data
protection rules, but with norms that defer to the regulation of the general law on data
protection or other and do not establish a specific regulation. A topic that is covered
by the domestic legislation is, in a very mild manner, protection of data in the context
of electronic communications for marketing purposes by the Data Protection in the
Telecommunications Sector Act discussed below (Sect. 3.2), though, in general, it is
not well suited to electronic communications, but essentially to telephone and fax
communication.
112
However, the regulation of the processing of personal data of employees through
electronic means is present. The Labour Code enacted in 2007
113 regulates this
109 Despite the Children and Youth Statute (approved by the Law No. 50/VIII/2013, of
26 December, published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 70,
26.12.2013, pp. 2309–2337, establishing, under its article 53, a guarantee of supervision by public
powers of content of information transmitted to minors on internet sites.
110 Law-Degree No 33/2007, of 25 of September, published by the Republic’s Official Gazette
[Boletim Oficial], I Serie, n. 36, 24.09.2017, pp. 670–689.
111 Legislative Decree [adopted under a Parliamentary delegation of legislative powers] No 11/2018,
of 5 September, published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 79,
05.12.2018, pp. 1920–1923.
112 In its last report, the National Authority on Data Protection (2017), p. 16, recommended the
amendment of this law, but it did not clarify if the purpose would be the insertion of rules that would
address internet related issues and other advancements in the field of communications.
113 Approved by the Legislative-Decree No 5/2007, of 16 October, published the Republic’s Official
Gazette [Boletim Oficial], I Serie, n. 37, Sup., 16.10.2007, pp. 2–63, amended by LegislativeDecree No 5/2010, of 16 June, published by the Republic’s Official Gazette [Boletim Oficial], I
96
J. Pina-Delgado
on the Internet
3.1 Personal Data Processed by Electronic Means
With regard to the general regulation of data protection and other acts—that cover
certain aspects of personal data processed by electronic means—there is no specific
Cape Verdean legislation that broadly encompasses services provided from a distance by electronic means, protection of minors
109 or that recognises the right of
erasure of personal data processed by electronic means, tough, as will be seen, this
can be a protective measure taken by supervisory entities. Notwithstanding, this does
not present an unsurmountable problem, because as far as all Cape Verdean
Courts are organs of rights protection, taking into consideration that constitutional
norms which recognise civil and political rights are directly applicable even without
the interposition of the legislative body, and in light of the fact that courts are obliged
to interpret existent ordinary law in conformity with those constitutional norms,
Pretorian constructions departing from the Basic Law can solve some of the eventual
lacunae in this domain.
In some cases, Esignature and Ecommerce Contracts Act of 2007
110 and the
Telework Act of 2018,
111 legislation applicable to electronic matters, includes data
protection rules, but with norms that defer to the regulation of the general law on data
protection or other and do not establish a specific regulation. A topic that is covered
by the domestic legislation is, in a very mild manner, protection of data in the context
of electronic communications for marketing purposes by the Data Protection in the
Telecommunications Sector Act discussed below (Sect. 3.2), though, in general, it is
not well suited to electronic communications, but essentially to telephone and fax
communication.
112
However, the regulation of the processing of personal data of employees through
electronic means is present. The Labour Code enacted in 2007
113 regulates this
109 Despite the Children and Youth Statute (approved by the Law No. 50/VIII/2013, of
26 December, published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 70,
26.12.2013, pp. 2309–2337, establishing, under its article 53, a guarantee of supervision by public
powers of content of information transmitted to minors on internet sites.
110 Law-Degree No 33/2007, of 25 of September, published by the Republic’s Official Gazette
[Boletim Oficial], I Serie, n. 36, 24.09.2017, pp. 670–689.
111 Legislative Decree [adopted under a Parliamentary delegation of legislative powers] No 11/2018,
of 5 September, published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 79,
05.12.2018, pp. 1920–1923.
112 In its last report, the National Authority on Data Protection (2017), p. 16, recommended the
amendment of this law, but it did not clarify if the purpose would be the insertion of rules that would
address internet related issues and other advancements in the field of communications.
113 Approved by the Legislative-Decree No 5/2007, of 16 October, published the Republic’s Official
Gazette [Boletim Oficial], I Serie, n. 37, Sup., 16.10.2007, pp. 2–63, amended by LegislativeDecree No 5/2010, of 16 June, published by the Republic’s Official Gazette [Boletim Oficial], I
96
J. Pina-Delgado