2.2.4 The Concept of Data Protection
Naturally, the Basic Law refers to data protection in article 45, but it does not provide
for any elaborate concept or, for that matter, notion. It does not mean that orientations on the meaning of data protection cannot be inferred from the fundamental text.
With regard to the connexion with substantive rights such as privacy, image and
identity, the content of personal data is necessarily linked to the idea of a person’s
control of information about oneself and how that integrates their own identity as an
individual. Therefore, any concept, independent of definition by the legislative
entity, by the courts or by a descriptive doctrine must be as broad as possible with
the aim of protecting any type of information that can be assembled on a person,
83
meaning any physical person, namely children and foreigners.
84 Consequently,
under article 5 a) of the Data Protection Act of 2001 (consolidated version), personal
data, “shall mean any information of any type/nature and irrespective of the medium
involved, including sound and image relating to an identified or identifiable person”,
which means that it integrates the comprehensiveness of the constitutional notion by
absorbing all kinds of information, by disregarding the means of gathering or
processing and by focusing on the persons as long as they are at least identifiable.
2.2.5 Categories of Data Protection
The legislation includes two main categories in order to develop different, though
integrated, legal regimes. It departs from the most important one: sensitive personal
data, which, in a positive sense, is considered by paragraph 1 of article 7 of the Data
Protection Act as comprising data that reveals “philosophical, ideological or political
beliefs or penalty (sic), religion, political party or trade union affiliation, racial or
ethnic origin, privacy, health and sex life, including genetic data”. These legal limits
result in large measure of a direct constitutional injunction, because according to
article 45(2) of the Basic Law, “The use of computer means to register and process
identified individual data related to political, philosophical or ideological convictions, religious beliefs, political or trade union affiliation or private life shall be
prohibited”.
The legal definition is apparently more generous than the one integrated in the
Constitution. They both focus on information that defines one’s consciousness and
beliefs (philosophical, ideological or political), related to immutable parts of one’s
body and/or culture (race and ethnicity); or that integrates an inherited or adopted
identity (religion); or are essential in a free and democratic society (political or trade
83 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), II, 8.2.
84 In Id., II, para 1.2, the plaintiff was a Nigerian national resident in Cape Verde, and the
Constitutional Court has explicitly said that he was entitled to the general right to privacy and all
related safeguards, connected both to criminal procedure and to data protection.
90
J. Pina-Delgado
Naturally, the Basic Law refers to data protection in article 45, but it does not provide
for any elaborate concept or, for that matter, notion. It does not mean that orientations on the meaning of data protection cannot be inferred from the fundamental text.
With regard to the connexion with substantive rights such as privacy, image and
identity, the content of personal data is necessarily linked to the idea of a person’s
control of information about oneself and how that integrates their own identity as an
individual. Therefore, any concept, independent of definition by the legislative
entity, by the courts or by a descriptive doctrine must be as broad as possible with
the aim of protecting any type of information that can be assembled on a person,
83
meaning any physical person, namely children and foreigners.
84 Consequently,
under article 5 a) of the Data Protection Act of 2001 (consolidated version), personal
data, “shall mean any information of any type/nature and irrespective of the medium
involved, including sound and image relating to an identified or identifiable person”,
which means that it integrates the comprehensiveness of the constitutional notion by
absorbing all kinds of information, by disregarding the means of gathering or
processing and by focusing on the persons as long as they are at least identifiable.
2.2.5 Categories of Data Protection
The legislation includes two main categories in order to develop different, though
integrated, legal regimes. It departs from the most important one: sensitive personal
data, which, in a positive sense, is considered by paragraph 1 of article 7 of the Data
Protection Act as comprising data that reveals “philosophical, ideological or political
beliefs or penalty (sic), religion, political party or trade union affiliation, racial or
ethnic origin, privacy, health and sex life, including genetic data”. These legal limits
result in large measure of a direct constitutional injunction, because according to
article 45(2) of the Basic Law, “The use of computer means to register and process
identified individual data related to political, philosophical or ideological convictions, religious beliefs, political or trade union affiliation or private life shall be
prohibited”.
The legal definition is apparently more generous than the one integrated in the
Constitution. They both focus on information that defines one’s consciousness and
beliefs (philosophical, ideological or political), related to immutable parts of one’s
body and/or culture (race and ethnicity); or that integrates an inherited or adopted
identity (religion); or are essential in a free and democratic society (political or trade
83 Ruling No 27/2018, of 20 December, Judy Ike Hills v. Supreme Court of Justice, Constitutional
Court, J. Pina Delgado (rap.), II, 8.2.
84 In Id., II, para 1.2, the plaintiff was a Nigerian national resident in Cape Verde, and the
Constitutional Court has explicitly said that he was entitled to the general right to privacy and all
related safeguards, connected both to criminal procedure and to data protection.
90
J. Pina-Delgado