Habeas data is a writ and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”. The remedy varies from country to country, but in general, it is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honour, information self-determination and freedom of information of a person.
Habeas data can be sought by any citizen against any manual or automated data register to find out what information is held about his or her person. That person can request the rectification, actualisation or even the destruction of the personal data held. The legal nature of the individual complaint of habeas data is that of voluntary jurisdiction, this means that the person whose privacy is being compromised can be the only one to present it. The Courts do not have any power to initiate the process by themselves.
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Habeas data is an individual complaint before a Constitutional Court. The first such complaint is the habeas corpus (which is roughly translated as “[we command] you have the body”). Other individual complaints include the writ of mandamus (USA), amparo (Spain, Mexico and Argentina), and respondeat superior (Taiwan).
The habeas data writ itself has a very short history, but its origins can be traced to certain European legal mechanisms that protected individual privacy. This cannot come as a surprise, as Europe is the birthplace of the modern Data Protection. In particular, certain German constitutional rights can be identified as the direct progenitors of the Habeas Data right. In particular, the right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality . This is a right to know what type of data are stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data. The other direct predecessor of the Habeas Data right is the Council of Europe’s 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including a right to access their personal data held in an automated database.[1]
The first country to implement Habeas Data was the Federal Republic of Brazil. In 1988, the Brazilian legislature voted to introduce a new Constitution, which included a novel right never seen before: the Habeas Data individual complaint. It is expressed as a full constitutional right under article 5, LXXII, of the Constitution.
Following the Brazilian example, Colombia incorporated the Habeas Data right to its new Constitution in 1991. After that, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996[2]