Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The Supreme Court of Uruguay held that under the Law on the Right of Access to Public Information, disclosure by the Communications Services Regulatory Unit of the number of subscribers to a television company’s services does not violate the constitutional right to privacy. The Court reasoned that the records of the number of subscribers to a cable TV service do not qualify as either sensitive or private and since the information involves a service subject to public control and regulation, “the public interest in the activities of the plaintiffs is clear.” The Court concluded that making this information public would not generate “any risk” for the companies, and thus ordered the information to be disclosed.
This case analysis was contributed by Right2Info.org.
In 2010, the Uruguayan Press Association (APU) sought information from the Communications Services Regulatory Unit (URSEC) on the number of subscribers to Videocable Rivera and other cable television companies in order to inform union wage negotiations with those companies. URSEC refused to provide the data on the grounds that the information is proprietary and would violate the right to private correspondence under Article 28 of the Constitution. APU challenged that decision and a lower court ordered the information to be disclosed.
The cable television companies appealed the decision to the Supreme Court, arguing that Articles 2 and 4 of the ATI Law are unconstitutional because they define public information as “all information” in the possession of (Article 2) or under the control of (Article 4) a state actor without exception. The companies argued that disclosure would violate their rights to protect personal information under Article 28 of the Constitution and their rights under various international laws and treaties respecting the right to privacy. They said that this was because the number of subscribers constitutes sensitive business information that would interfere with business strategies and would also violate the privacy of their subscribers if disclosed.
The Supreme Court first held that the companies “did not develop” the facts sufficiently to show that Articles 2 and 4 of the ATI Law were unconstitutional. The Court held that this was “reason enough to reject the petition” of the cable companies.
Nevertheless, the Court went on to address the substantive legal questions and acknowledged a tension between “the right to protect private information and the right to access public information.” The Court emphasized that “there are no absolute rights” other than the right to life. All other rights must be regulated by “reasons of common interest.” The ATI law “guarantees the right to information, which is implicit in diverse national and international texts as a facet of the liberties of thought, opinion and expression.” This right must be interpreted in harmony with constitutional principles such as Article 28 and the right to protect sensitive or private personal information.
Here, the Court held that the law “does not infringe the right of individuals to protect their personal data” because records of the number of subscribers to a cable TV service held by URSEC “do not qualify as either sensitive or private”. Because the information involves a service subject to public control and regulation, “the public interest in the activities of the plaintiffs is clear.” Although the companies did not consent to disclosure and the law expresses a preference that public agencies seek and obtain consent before disclosing information, the Court found that the companies did not have a legitimate reason to object to disclosure. The Court found that making this information public would not generate “any risk” for the companies, and thus ordered the information to be disclosed.
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