AAIP Draft Data Protection Bill includes contributions from ADC
On November 10, the Agency for Access to Public Information (AAIP) submitted the draft Data Protection Law, including provisions aligned with the recommendations made by ADC during the public consultation process.
After participating in the opening round table discussion on the bill, our organization shared a series of considerations vital to an updated law on the subject.
Among the recommendations, we deem worth mentioning:
● The pre-eminence principle in Article 10: this implies that any doubt on the interpretation of the norm, its scope, or the assessment of the evidence in specific cases, the enforcement authority, judge, or anyone in charge of its application shall be resolved in favor of the data subject.
● The restriction of possible abuses of “legitimate interest: “This has been included in Article 13, referring to the legal bases, where paragraph f) states that a prior detailed and documented analysis must be performed to determine the existence of a legitimate interest.
● Due diligence, included at the end of Article 12 on the principle of responsibility. “The Controller or Processor must implement due diligence on the subject, understood as a continuous process aimed at identifying, preventing, being accountable and mitigating the adverse impacts that might occur.”
Likewise, ADC insists on those aspects of the project that must not be withdrawn in subsequent legislative revisions to come:
● The adoption of international human rights treaties in Article 1.
● The recognition of the AAIP as an independent state agency with enforcement and sanctioning powers. We insist that the law provide the agency with adequate financial, technical, and human resources to carry out its tasks.
● The provision in Article 66 about locus standi, stating that “the action may also be attempted in collective representation by the Enforcement Authority, the Public Defender and associations or organizations with a legitimate interest, provided that its object is limited to challenging treatments involving widespread violations.”
Finally, ADC hopes that the congressional debate will serve as an instance to deal with those aspects of the bill that need to be corrected to respect the current standards on data protection, especially considering the recent approval of Convention 108+ by the Lower House.
