Case Summary and Outcome

The Constitutional Court of Colombia declared articles 32 and 146 of Law 1801 of 2016 constitutional and article 237 of Law 1801 of 2016 was declared conditionally constitutional. Five articles of the Police Code affecting issues of private space and protection of information were challenged for violating the right to privacy, freedom of expression, free development of personality, free association and the right to public and peaceful assembly and demonstration. The Court considered that the articles were in alignment with the constitutional interpretation of privacy and intimacy and that the articles would be constitutional as long as interpreted in conjunction with the constitutional and current legal regulation of the protection of personal data.

Facts

On July 29, 2016, Colombian Congress issued Law 1801 of 2016, “Whereby the National Code of Citizen Security and Coexistence”, also known as “Police Code”. The provisions of the law seek to establish the conditions for coexistence in the national territory, as well as to determine the exercise of the function and power of the Police. Citizens Cesar Rodríguez Garavito, Vivian Newman Pont, Mauricio Albarracín Caballero, Maryluz Barragán González and María Paula Ángel Arango, filed a claim of unconstitutionality against Articles 32, 95 (partial), 139 (partial), 146 (partial) and 237 (partial) of Law 1801 of 2016. In general terms, the plaintiffs considered that the aforementioned articles violate the right to privacy, freedom of expression, free development of personality, free association and the right to public and peaceful assembly and demonstration.
The first charge was directed against Article 32 of the Police Code. The article in question defines privacy as “the right of individuals to satisfy their needs and develop their activities in an area that is exclusive to them and therefore considered private” [par. 3] and subjects its exercise within the private space. The plaintiffs consider that the right to privacy can be exercised in spaces that are not strictly private, and therefore violates articles 15 of the Constitution, Article 11 of the American Convention on Human Rights and Article 17 of the International Covenant on Civil and Political Rights. They also alleged that the provision confuses the scope of protection of the right to privacy with the inviolability of the home.

The second charge was directed against numeral 8 of Article 95 of the Police Code. The referred numeral states that the non-registration of the mobile equipment and its terminal IMEI number when being imported into the country constitutes a behavior that affects security. The plaintiffs pointed out that the imposition of such obligation affects the right to privacy, the free development of personality, freedom of expression, the right to public assembly and demonstration and the right to free association, as per articles 15, 16, 20, 37 and 38 of the Constitution, Articles 11, 13, 15 and 16 of the American Convention on Human Rights and 17, 19, 21 and 22 of the International Covenant on Civil and Political Rights. The plaintiffs claimed that the benefit obtained by the measure fails to justify the severe restriction of the rights in question.

The third charge was directed against article 139 of the Police Code for the violation of articles 15, 16, 20, 20, 37 and 38 of the Constitution, articles 11, 13, 15 and 16 of the American Convention on Human Rights and 17, 19, 21 and 22 of the International Covenant on Civil and Political Rights. The article includes electromagnetic space as part of public space. The plaintiffs claimed that the provision constitutes a violation of the guarantee of inviolability of communications and a threat to the free development of personality, freedom of expression and the right to assembly and demonstration, as per articles 15, 16, 20, 20, 37 and 38 of the Constitution, articles 11, 13, 15 and 16 of the American Convention on Human Rights and 17, 19, 21 and 22 of the International Covenant on Civil and Political Rights, since such consideration would allow the authorities to monitor the electromagnetic space. Consequently, the communications that transit through it would be unprotected from the right to privacy.

The fourth charge was directed against paragraph 2 of article 146 of the Police Code. The mentioned paragraph orders companies that provide mass passenger transportation services to implement surveillance cameras in their vehicles, creating an intense restriction on the right to privacy, free development of personality, freedom of expression and the right to freedom of association, as per articles 15, 16, 20 and 38 of the Constitution, articles 11, 13 and 16 of the American Convention on Human Rights and articles 17, 19 and 22 of the International Covenant on Civil and Political Rights. The plaintiffs considered that these vehicles can be considered semi-public spaces with greater protection of the right to privacy.

The fifth charge was directed against the first clause of Article 237 of the Police Code. The first clause of this norm states that “the information, images and data captured and/or stored by video systems or technological means located in public spaces or in places open to the public shall be considered public and freely accessible, except in the case of information covered by legal reserve.” [para. 21] The plaintiffs argued that the right to habeas data is disregarded and that it encourages profiling, monitoring and discrimination, consequently violating the right to privacy, as per article 15 of the Constitution, article 11 of the American Convention on Human Rights and article 17 of the International Covenant on Civil and Political Rights.

Finally, the sixth charge was directed against the second paragraph of Article 237 of the Police Code. The second paragraph of this rule provides that the video systems installed in public spaces shall be linked to the network provided by the Police. The plaintiffs argued that this measure constitutes a mechanism of mass surveillance with a disproportionate interference in the right to privacy, as per articles 15, 16, 20, 20, 37 and 38 of the Constitution, articles 11, 13, 15 and 16 of the American Convention on Human Rights and articles 17, 19, 21 and 22 of the International Covenant on Civil and Political Rights.

Decision Overview

Judge Alejandro Linares Cantillo brought the opinion of the Court.

The Constitutional Court had to decide whether the challenged articles of the Police Code were contrary to the Constitution for violating the right to privacy, freedom of expression, free development of personality, free association and the right to public and peaceful assembly and demonstration. When considering compliance with the procedural requirements of the complaint, the Court defined the substantive ineptitude of charges two and three of the complaint. determined the aptitude of charges one and four and made use of the normative integration to consider charges five and six as a whole.

The Court began by analyzing the content and scope of the right to privacy. In this regard, it considered that “(i) all persons have the right to their personal and family privacy and to their good name, and the State must respect them and ensure that they are respected; (ii) correspondence and other forms of private communication are inviolable and may only be intercepted or recorded by court order, in the cases and with the formalities established by the law; and (iii) for tax or judicial purposes and for cases of inspection, surveillance and intervention by the State, the presentation of accounting books and other private documents may be required, under the terms established by law” [par. 64]. Regarding physical space, the Court defined that although the degree of realization of this right varies according to the place where the individual is located, this does not mean that the right to privacy is only relevant in the private space. However, it pointed out that it is necessary to consider the expectation of privacy to verify whether certain manifestations are within the scope of protection of the right to privacy, or whether it can be interfered with by another individual. In this regard, it considered that “the restriction of the right to privacy as a result of the installation of surveillance cameras is, in general terms, mild insofar as the expectation of privacy is reduced if compared, for example, with semi-private or private spaces; and correlatively, there must be a greater tolerance to control and surveillance.” [para. 71]

Next, regarding the right to habeas data, the Court states that it has been catalogued as an autonomous fundamental right read in conjunction with the right to privacy, to the free development of personality, to information and to rectification. Jurisprudentially, the Court has given this right the function of balancing the power between the owner of the personal data and the one with the capacity to collect, store, use and transmit them. However, it considered that “under certain particular circumstances, the harshness of the principle of freedom that should guide the processing of personal data becomes more flexible when harmonized with the principle of purpose, provided that the circulation of the data is strictly directed and restricted to the fulfillment of the higher constitutional purpose, in accordance with the principle of necessity” [para. 85]

Regarding charge one against article 32 of the Police Code, the Court stated that it does not violate the Constitution. This is because upon studying together paragraphs 1 and 2 of the article that establish the places that are not considered private, it concludes that the constitutional jurisprudence has defined that the right to privacy protects an “ontological personal space” or a “space of the free development of personality” [para. 102] and therefore there is only a minimum requirement of protection in all areas and spaces (public, semi-public, semi-private and private). para. 160]

Regarding charge four against the first clause of the second paragraph of article 146 of the Police Code, the Court concluded that the challenged norm does not violate the Constitution. The above, because although the installation of surveillance cameras in mass public transportation vehicles generates a slight restriction to the right to privacy, “this is justified by the legitimate purpose it pursues (prevalence of the general interest and guarantee of public order), complying with the requirements of reasonableness and proportionality demanded by the constitutional jurisprudence” [par. 161]. In any case, the Court remarked that the information obtained must be subject to the provisions of the personal data protection law.

Finally, regarding charges five and six, against article 237 of the Police Code, the Court defined that the nature of the information captured by the cameras does not depend on the place where they are installed. In this regard, it considered that “although it could be considered that, as a general rule, the data captured in public or semi-public spaces are, in essence, public, there is the possibility that the information captured there may be semi-private, private or reserved, so allowing free access to it could contravene the postulates of the Constitution.” [para. 151] Consequently, the Court indicated that in order to preserve the integrity of the Constitution, the rule should be interpreted “in conjunction with the constitutional and legal regime for the protection of personal data, as well as with the rules established by constitutional jurisprudence in relation to the different types of information”. Thus, the Court concluded that the handling and treatment of information, data and images captured and stored through video systems installed in public, semi-public or semi-private spaces must “observe the principles of legality, purpose, freedom, transparency, access and restricted circulation, security and confidentiality and expiration.” [para. 158]

On these grounds, the Court held that Article 32 of the Police Code and the first clause of the second paragraph of Article 146 of the Police Code are constitutional and article 237 of the Police Code is conditionally constitutional.