to a permanently dynamic field as technology,
70 considered that the Fundamental
Law recognises a right to data protection directly linked to a general right to privacy
anchored in human dignity, liberty and personal autonomy,
71 with a dimension of
the right to be left alone
72 (isolated) and a right to control information about oneself
(informational self-determination)
73 as a comprehensive safeguard
74 that, in its turn,
spreads as special guarantees.
75
The Court adopted a doctrine according to which, data protection constitutional
guarantees result from the broad reading of article 45 of the Basic Law, which means
more than explicitly recognising a simple right to access, rectify and be informed
about the objectives of its gathering, storage, and treatment, in the sense that it also
includes a substantive protection of informational self-determination sheltering against the collection of personal data by the State or other entities. According
to the adopted understanding of the Court, people have the right (albeit a limitable
right) to prevent their data being gathered by any other entity. In other words,
according to constitutional rights limitations mechanisms, it can be limited, to a
certain extent, by law, it can be waived by the rights holder and it can be subject to
suspension in situations of declared constitutional emergencies even if only to
support an important public purpose or a personal interest and only if it is done in
a proportional manner and without interfering with the core of the right.
76
2.2.2 The Relationship Between the Right to Data Protection and Other
Constitutional Principles and Rights
In addition, as far as the right of protection of identity, the right to personal image
and the right to intimacy of private and familiar life are recognised by another
fundamental precept, article 41, the system departs from these rights to construct
the safeguards to protect data. For this reason, one would have to consider that data
protection is not an autonomous basic right recognised by the Constitution of the
Republic that has attached to it a number of fundamental legal positions, safeguards
and guarantees, but mostly a fundamental legal tool to guarantee those rights.
77
According to the Constitutional Court in Judy Ike Hills v. Supreme Court of Justice,
there is a general right to privacy from which unfolds a number of explicit
70 See also from a comparative perspective the introduction and articles in Leenes et al. (2008).
71 See also the conceptualization of Buitelaar (2012), pp. 182–202, and, before that, Solove (2006).
72 Warren and Brandeis (1890).
73 For the concept, Eberle (2001).
74 See also the perspectives of Gavison (1980), Cepeda Espinosa (2012) and Rouvroy and
Poullet (2009).
75 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), II, para. 4.8–4.9.
76 Ibid., II, para. 4.9.
77 Ibid., II, para. 4.8–4.9.
88
J. Pina-Delgado
70 considered that the Fundamental
Law recognises a right to data protection directly linked to a general right to privacy
anchored in human dignity, liberty and personal autonomy,
71 with a dimension of
the right to be left alone
72 (isolated) and a right to control information about oneself
(informational self-determination)
73 as a comprehensive safeguard
74 that, in its turn,
spreads as special guarantees.
75
The Court adopted a doctrine according to which, data protection constitutional
guarantees result from the broad reading of article 45 of the Basic Law, which means
more than explicitly recognising a simple right to access, rectify and be informed
about the objectives of its gathering, storage, and treatment, in the sense that it also
includes a substantive protection of informational self-determination sheltering against the collection of personal data by the State or other entities. According
to the adopted understanding of the Court, people have the right (albeit a limitable
right) to prevent their data being gathered by any other entity. In other words,
according to constitutional rights limitations mechanisms, it can be limited, to a
certain extent, by law, it can be waived by the rights holder and it can be subject to
suspension in situations of declared constitutional emergencies even if only to
support an important public purpose or a personal interest and only if it is done in
a proportional manner and without interfering with the core of the right.
76
2.2.2 The Relationship Between the Right to Data Protection and Other
Constitutional Principles and Rights
In addition, as far as the right of protection of identity, the right to personal image
and the right to intimacy of private and familiar life are recognised by another
fundamental precept, article 41, the system departs from these rights to construct
the safeguards to protect data. For this reason, one would have to consider that data
protection is not an autonomous basic right recognised by the Constitution of the
Republic that has attached to it a number of fundamental legal positions, safeguards
and guarantees, but mostly a fundamental legal tool to guarantee those rights.
77
According to the Constitutional Court in Judy Ike Hills v. Supreme Court of Justice,
there is a general right to privacy from which unfolds a number of explicit
70 See also from a comparative perspective the introduction and articles in Leenes et al. (2008).
71 See also the conceptualization of Buitelaar (2012), pp. 182–202, and, before that, Solove (2006).
72 Warren and Brandeis (1890).
73 For the concept, Eberle (2001).
74 See also the perspectives of Gavison (1980), Cepeda Espinosa (2012) and Rouvroy and
Poullet (2009).
75 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), II, para. 4.8–4.9.
76 Ibid., II, para. 4.9.
77 Ibid., II, para. 4.8–4.9.
88
J. Pina-Delgado