The End of Ideological Profiles in Electoral Propaganda?

As we commented in our post of 16 January 2019, the new Organic Law on Data Protection and Guarantee of Digital Rights, which adapts Spanish legislation to the General Regulation on Data Protection (RGPD) approved by the EU, introduced a new article 58 bis in the Organic Law on the General Electoral System (LOREG) which went on to authorise political parties to collect personal data on the political opinions of individuals within the framework of their electoral activities without any prior authorisation.

The controversy therefore arose as to whether the new provision allowed political parties to create databases and ideological profiles of citizens with the data obtained, or whether it was simply a reproduction of recital 56 of the GDPR, which in no case allowed the creation of such databases and profiles.

The controversy generated and the lack of precision of the article led the Data Protection Agency (AEPD) not only to advance an interpretation of the article before the approval of the new Law, but also to publish an exhaustive report prepared by its legal counsel analysing it and Circular 1/2019, of 7 March, in which it established the criteria for such processing. Documents with which, it must be pointed out, the AEPD placed itself in the position of the legislator, specifying and establishing the criteria that the latter should have established, as made clear by the Constitutional Court in the judgment we are examining in this post (and contrary to what the State Attorney argues in the allegations to the appeal that has given rise to the same, which understood that through them the Law is not being innovated).

Despite this, at the same time, the acting Ombudsman filed an appeal of unconstitutionality against paragraph 1 of the aforementioned article 58 bis, on the grounds that it violated the right to the protection of personal data enshrined in article 18.4 of the Constitution in connection with article 53.1 thereof (as well as the violation of other fundamental substantive rights such as the right to ideological freedom in article 16 EC and the right to political participation in article 23, together with the violation of the principle of legal certainty enshrined in article 9.3). Appeal lodged following various submissions received from various associations, activists and lawyers specialising in data protection, which shows the political nature of the introduction of this provision, which has not been appealed by any opposition party.

In particular, the application invoked the unconstitutionality of that provision for three reasons: first, for not determining for itself the purpose of the processing, beyond a generic reference to the 'public interest'; second, for not limiting the processing by regulating in detail the restrictions to the fundamental right; and, finally, for not establishing adequate safeguards to protect the fundamental rights concerned.

On 29 May 2019, the Constitutional Court advanced the operative part of its ruling, in which the Plenary unanimously upheld the appeal of unconstitutionality presented by the Ombudsman and, consequently, declared contrary to the Constitution and null and void section 1 of article 58 bis of the LOREG.

The Constitutional Court considers that political opinions are sensitive personal data with a need for protection superior to other personal data and that the legislator is constitutionally obliged to adapt the protection that it provides to this type of data, imposing in its case greater requirements so that they can be the object of processing and providing specific guarantees for the same (FJ 6, d).

However, with the regulation given to article 58 bis, the legislator does not determine the purpose of the processing (the public interest that underpins the restriction of the fundamental right), does not delimit the presuppositions or the conditions thereof (regulating in detail the restrictions to the fundamental right), nor does it establish the adequate guarantees for the protection of the fundamental right to data protection established by the doctrine of the TC itself. Something that, by virtue of the principle of reservation of law of article 53.1 EC, is the responsibility of the legislator (organic in this case) and that cannot be left to the interpretation of the one who applies the law. Consequently, it understands that the three violations of Article 18.4 EC alleged by the Ombudsman in connection with Article 53.1 EC have occurred and declares the contested provision to be contrary to the Constitution and null and void.

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