by Tamara Álvarez Robles, Lecturer at the University of Vigo
On the reform of national law on data protection: the special incorporation of digital rights in Spain
The reform of the Spanish Organic Law on Data Protection (LO 3/2018), to adapt it to the General Regulation of Data Protection has introduced together with the European requirements a catalogue of digital rights. Title X “Guarantee of digital rights” has meant, undoubtedly one of the biggest novelties to data protection regulations. It is composed of a set of Articles, from 79 to 97, which present, for the first time in the Spanish national legislative sphere, the new generation of digital rights[i], inter alia, right to Internet neutrality, right to digital security, right to digital education, protection of minors on the Internet, right to rectification on the Internet, right to privacy and use of digital devices in the workplace, right to digital disconnection in the workplace, right to digital testament.
The inclusion in-extremis of the present Title X, of digital rights, through amendment of the Congress of Deputies dated April 18, 2018, responds to the fundamental importance, to the ever-present and dominating reality of the Internet, which reaches all spheres of our lives. That is why, Organic Law 3/2018 in section IV of the Preamble already points to the involvement of public authorities through the provision of public policies (Article 9.2 SC) in order to make effective the catalogue of digital rights based on the Principle of Equality (Article 14 SC), stating that: “it is the responsibility of the public authorities to promote policies that make effective the rights of citizens on the Internet, promoting the equality of citizens and the groups in which they are integrated in order to possible the full exercise of fundamental rights in the digital reality”.
Thus, the firmness of this prescription is derived from the network of precepts and provisions that cover that mandate to the Government, through the development of an action plan of access to the Internet, the promotion of as many measures as necessary (Article 97), and the mandate to the legislator, through the normative development of the different rights (article 83, articles 18, 19, 21 etc.), that from these minimum similar conditions for Spaniards, it is determined in the second final provision the which reproduces the competencial title of the State on the regulation of the basic conditions that guarantee the Principle of Equality among Spaniards in the exercise of their rights and compliance with constitutional duties (Article 149.1.1 SC).
The guarantee of digital rights is, perhaps, one of the major contributions of the norm to the neo-constitutionalism[ii], because it tries to adapt the regulations to the social reality so that our constitutional scope does not reiterate the common practice of applying analogy in the field of cyberspace[iii], in the digital environment, showing its support in the near future for the consolidation of rights through their recognition as substantive rights[iv].
In this way, the inclusion in LO 3/2018 of the set of digital rights makes us wonder if we really attend to a true system of guarantees of the same, instituted by the norm that occupies us, by its concrete Title X, or, on the contrary, and given the different nature of the precepts according to those provided in the first final provision, we are facing a first step leading to its guarantee.
This, in turn, leads us to specify the need for regulatory development from the organic or ordinary nature of digital rights that in turn will influence the safeguard and protection by the courts. Moreover, the remission between the different precepts of the norm, and even among the norms to which it modifies, complete the scope of this Title X.
However, its vision mainly focus on the national level. That is why, perhaps, we should incorporate the need to rethink the aforementioned Title from a transnational, global vision, which characterizes digital law and the digital society itself.
Generally speaking, we can point out that, although the intention of the lawmaker is good, and we celebrate it, the wording of the different precepts is not free of criticism as sometimes we verify the lack of effectivization of principles, lack of clarity and reiteration of contents both in this norm itself and in the rest of the national legal system, which lead us to glimpse a certain degree of immaturity in ideas, perhaps due to the rush in the law-making to be pioneer in the European sphere regarding the legislative recognition of digital rights[v].
[i] Although it is true that some of them had already been considered by different courts, let us think about the right to be forgotten contained in SCC 58/2018, video surveillance in SCC 29/2013; digital education Judgement ECHR case Jankovskis vs Lithuania 2017; freedom of expression on the Internet Judgement ECHR Delfi vs Estonia; Internet access right from the Ahmet Yildirim vs. Turkey 2012 case of the same court, etc. Also, some of these rights, especially those related to education, training, access to ICT ‘s, have been contained in the statutory reforms occurred from 2006 or developed by regional standards, for example the Law 10/2017, of June 27, of the digital wills and modification of the second and fourth books of the Civil Code of Catalonia. Available at: https://www.boe.es/buscar/doc.php?id=BOE-A-2017-8525.
[ii] SEIJAS VILLADANGOS, Mª E. “Modern trends in Constitutional Law: towards new constitutional principles”. In Pendás GARCIA, B. (dir.). Constitutional Spain. Paths and perspectives. Vol. III. Madrid: Center for Political and Constitutional Studies. 2018. pp.1982-1986.
[iii] In this case we must warn of the dysfunctionality of the practice, because not all analogical rights have their recognition in the digital domain, nor do digital rights have the corresponding analogue right, on the contrary the peculiarities of both can condition and they condition the execution and guarantee of the right, and must be considered from their particular course.
[iv] Since the derivation of Article 18.4 of the Fundamental Law through their effective incorporation as this constitutional reform was advocated in section IV of the Preamble of LO 3/2018: “A desirable future reform of the Constitution should include among its priorities the updating of the Constitution to the digital age and, specifically, raise a new generation of digital rights to constitutional status. But, while this challenge is not undertaken, the legislator must address the recognition of a digital rights guarantee system that unequivocally finds its anchorage in the mandate imposed by the fourth paragraph of Article 18 of the Spanish Constitution and that, in some cases, they have already been shaped by ordinary, constitutional and European jurisprudence”. Free translation.
[v] Highlighting the role of the Group of Experts that constituted the Working Group on Digital Rights of Citizens just a few months before the incorporation of these rights in the organic standard (03/27/2017) and the influence of political change, fundamentally the influence of Artemi Rallo. More information at: https://www.mincotur.gob.es/es-ES/GabinetePrensa/NotasPrensa/2017/Paginas/grupo-derechos-digitales20170328.aspx.
Pictures credits: Computer repair by Luke Jones.