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Privacy Tracker | Argentina court decision clarifies the concept of sensitive data Related reading: The friction between free speech, youth privacy laws



The Federal Court of Appeals on Civil and Commercial Matters has expanded the country’s already robust data protections by ruling that the context in which data is gathered and processed matters when determining if it should be considered sensitive data.

The facts of the case are as follows. The PATRIA Institute, a political think tank from Buenos Aires which is closely aligned with former president Cristina Kirchner, was asked to hand over its Associates Registry Book to the inspector general of justice in order to comply with a regulation requiring such disclosures to approve its financial statements for the 2016 period. PATRIA, however, refused. It argued that this registry would constitute information on political ideology, which is sensitive personal data according to the Argentine Data Protection Law No. 25,326 and cannot be disclosed without the consent of the data subjects. The IGJ argued that names alone are not sensitive data under the DPL, but PATRIA insisted that the names themselves were sensitive in the circumstances of the case, since they would reveal the ideology of its associates.

After months of not receiving the Associates Registry Book, the IGJ imposed sanctions on PATRIA and ordered the disclosure of the names. PATRIA filed an appeal against this sanction before the Appellate Court.

The Civil Court of Appeals began its opinion by reaffirming one of the DPL’s principal aims, which is that of protecting the sensitive personal data of data subjects and the rights implicated by that protection. It also stressed the role that consent plays in the collection and use of personal data. Sensitive personal data, the court held, includes data that reveals political opinions and organizational membership and that can be used as a basis for discrimination or prejudice.

The court then looked at PATRIA’s essential mission, which is to advance political ideals in the region. It held that associates’ ideologies are inextricable from PATRIA’s political mission and that consequently having one’s name associated with the group indicated one’s ideology. Therefore, while names alone are not usually protected as sensitive personal data under the DPL, the court held that in this context they are sensitive.

Because of this ideological inseparability, the court held that PATRIA could not be compelled to reveal its associates’ names because doing so would infringe on their constitutional rights to privacy, intimacy, nondiscrimination, liberty of conscience and ideological free association, as well as their rights as data subjects under the DPL. The court ordered that the IGJ’s sanctions be lifted and that it cease its requests for PATRIA’s associate registry.

In creating a context-based method of finding previously non-sensitive personal data to be sensitive under specific circumstances, the court expanded the protections offered by the DPL.

photo credit: Día de la bandera argentina via photopin (license)


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