guarantees, namely linked to its informational self-determination sphere and to data
protection.
78 Thus, the understanding is that the data protection is a complex group
of constitutional safeguards associated with a general right to privacy and eventually
to the right to image and to the right to identity, besides being related to a right of
individuals to develop their own personality.
79 The main effect of the opinion of the
Constitutional Court is that substantive rights that justify data protection (image,
identity and, especially, privacy) are still applicable, dependent on the circumstances
of the case, to the situations where a specific explicit safeguard on personal data
protection is not directly recognised by any constitutional norm.
80
2.2.3 The Content of the Constitutional Right to Data Protection
Hence, the right to data protection corresponds to a plurality of safeguards
recognised by the Constitution in order to protect any information of persons,
being treated by informatised means or not, in the sense that paragraph 7 of article
45 extends the application of the guarantees to manual gathering, storage, access,
treatment and transfer.
It includes a safeguard that limits any information gathering and subsequent
operations to the existence of legitimate public purposes and/or personal interests;
another that forbids, according to the Constitutional Court, the storage in a unique
file of all personal data of a person in reason of paragraph 5 of the same article that
proscribes the attribution of a single number to persons
81 ; a third that limits treatment
of sensitive data to few exceptions (para. 2), a fourth that bans access to third
persons’ files and its inter-institutional transfer, except in cases established by law
or according to a judicial decision (para. 4), and others that safeguard regarding
treatment of data by delegating powers to the legislative body to establish an
adequate and meaningful system to protect personal data (para. 3), namely with
regard to constitution and use of data files and respective computerised support by
public and private entities (id.) and the cross-border flow of personal data (para. 5).
Additionally, people have a right to access their stored data, to be informed of the
purposes of the treatment of their data, and to demand its correction and updating
(para. 1), and to Habeas Data (article 46). In addition, these constitutional rights are
completed or materialised by the specific rights mentioned by the general law on
personal data protection: to information (article 11), of access (article 12), of
opposition (article 13), of non-subjection to automated individual decisions (article
14), to security of data (articles 15 and 16) and to confidentiality in data processing
(articles 17 and 18).
82
78 Ibid., II, para. 4.8.
79 Id., II, para. 4.9.
80 Ibid.
81 Id., II, para. 8.2.
82 For further comments, Traça and Embry (2011), pp. 252–253.
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89
protection.
78 Thus, the understanding is that the data protection is a complex group
of constitutional safeguards associated with a general right to privacy and eventually
to the right to image and to the right to identity, besides being related to a right of
individuals to develop their own personality.
79 The main effect of the opinion of the
Constitutional Court is that substantive rights that justify data protection (image,
identity and, especially, privacy) are still applicable, dependent on the circumstances
of the case, to the situations where a specific explicit safeguard on personal data
protection is not directly recognised by any constitutional norm.
80
2.2.3 The Content of the Constitutional Right to Data Protection
Hence, the right to data protection corresponds to a plurality of safeguards
recognised by the Constitution in order to protect any information of persons,
being treated by informatised means or not, in the sense that paragraph 7 of article
45 extends the application of the guarantees to manual gathering, storage, access,
treatment and transfer.
It includes a safeguard that limits any information gathering and subsequent
operations to the existence of legitimate public purposes and/or personal interests;
another that forbids, according to the Constitutional Court, the storage in a unique
file of all personal data of a person in reason of paragraph 5 of the same article that
proscribes the attribution of a single number to persons
81 ; a third that limits treatment
of sensitive data to few exceptions (para. 2), a fourth that bans access to third
persons’ files and its inter-institutional transfer, except in cases established by law
or according to a judicial decision (para. 4), and others that safeguard regarding
treatment of data by delegating powers to the legislative body to establish an
adequate and meaningful system to protect personal data (para. 3), namely with
regard to constitution and use of data files and respective computerised support by
public and private entities (id.) and the cross-border flow of personal data (para. 5).
Additionally, people have a right to access their stored data, to be informed of the
purposes of the treatment of their data, and to demand its correction and updating
(para. 1), and to Habeas Data (article 46). In addition, these constitutional rights are
completed or materialised by the specific rights mentioned by the general law on
personal data protection: to information (article 11), of access (article 12), of
opposition (article 13), of non-subjection to automated individual decisions (article
14), to security of data (articles 15 and 16) and to confidentiality in data processing
(articles 17 and 18).
82
78 Ibid., II, para. 4.8.
79 Id., II, para. 4.9.
80 Ibid.
81 Id., II, para. 8.2.
82 For further comments, Traça and Embry (2011), pp. 252–253.
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