What steps will you take to ensure the privacy of participants in your data collection?
Data collection is very important. Data is a collection of facts, figures, objects, symbols, and events gathered from different sources. Organizations collect data with various data collection methods to make better decisions. Without data, it would be difficult for organizations to make appropriate decisions, so data is collected from different audiences at various points in time.
For instance, an organization must collect data on product demand, customer preferences, and competitors before launching a new product. If data is not collected beforehand, the organization’s newly launched product may fail for many reasons, such as less demand and inability to meet customer needs.
Although data is a valuable asset for every organization, it does not serve any purpose until analyzed or processed to get the desired results.
Data collection methods are techniques and procedures used to gather information for research purposes. These methods can range from simple self-reported surveys to more complex experiments and can involve either quantitative or qualitative approaches to data gathering.
Some common data collection methods include surveys, interviews, observations, focus groups, experiments, and secondary data analysis. The data collected through these methods can then be analyzed and used to support or refute research hypotheses and draw conclusions about the study’s subject matter.
Privacy and information rights in the information society and the ICT environment*
The human rights that have been affirmed in the Constitutions of the different countries, in accordance with the theory of guaranteeism, are those that can be considered fundamental. The Mexican Constitution, in Decree published in the Official Gazette of the Federation on June 10, 2011, it has reformed the name of its first chapter as “On human rights and their guarantees”, therefore, when reference is made to the constitutional recognition of these rights, we will take this point into account.
The Mexican Constitution recognizes as human or fundamental rights related to information and, therefore, to the information society, mainly the following: the right to information (article 1) of personal data (article 16); in addition to freedom of expression and of the press (article 7), and the inviolability of communications (article 16). Copyright and property rights intellectual property are mentioned in the fundamental norm as a reference to the fact that its existence should not be considered a monopoly (article 28).
Therefore, these rights and some others that are linked to personal information, such as the right to intimacy, privacy, honor and one’s own image — which, although not directly recognized in the Constitution , they are through the international treaties signed by this country—are the ones that we will address for study in this work.
The reasons for this delimitation (which could seem very broad) are based on the fact that there is a connection between all of them and that, given the growing use of ICT (which supports the development of said information society), they can be violated in jointly or collaterally and not in isolation. An example of this is the connection that exists between the right to information and freedom of expression with respect to the right to privacy. On several occasions they collide, and on other occasions they are almost complements of each other.
The analysis will be carried out by describing the regulation or protection that exists in Mexico of these rights and comparing them in some cases with the norms of other countries or regions. All this so that through a brief exercise of lege ferenda we can schematically detect the challenges that remain pending in Mexico.
Likewise, these rights will be discussed in the face of the challenges posed by the information and knowledge society (SIC). All of this, especially in terms of their protection, since at the same time that these rights are essential and the core of it, their impact also places them at a level of permanent risk that increases due to the lack of effective and timely legal protection. or self-regulation.
The importance of the information security measures that some countries have attempted or suggested adopting will also be pointed out, in order to control the flow of information that society receives through the network, its benefits and harms with respect to rights such as that of information or privacy.
On the other hand, in relation to universal service, which we will also talk about, it must be said that the doctrine refers to it as one of the ways to make other fundamental rights a reality, such as that of information or access to the Internet. or to the SIC. Universal service is that which appears in the telecommunications legislation of various countries, although not in the case of Mexico, whose Federal Law for this sector only speaks of social coverage, as we will see in due course.
Fundamental rights related to personal information
Various fundamental and personality rights are related to each other, but they are differentiable, so it is necessary to make a distinction between them. In this way, linked but not equal rights must be listed, such as the rights to honor, to one’s own image, to intimacy or privacy, to data protection, to inviolability. of the address and the secrecy of communications. However, although the legal good that each of them protects is diverse, they cannot be treated in isolation, and even less so when they are analyzed within the framework of a SIC that interconnects many aspects.
The legal framework of personality rights also has a relationship with a principle of law recognized in the Declaration of Human Rights, which is that of human dignity. The European Community has elevated this to a fundamental legal good and, therefore, taking into account the large amount of personal information that circulates on the networks, it is evident that the situation resulting from this may specifically affect this good.
The right to data protection is closely linked to that of intimacy and privacy, but it enjoys its own autonomy (according to jurisprudential interpretation) since although the right to privacy has been derived from the recognition of freedom personal in the first generation of rights, it was until the third generation that, in “response to the phenomenon of the so-called ‘contamination of freedoms’ (liberties’ pollution)“, the right to privacy gained greater popularity, which caused.
This was forced to expand its spectrum through the recognition of new aspects of it, to now have a ramification of rights incorporated into it, such as the right to honor, to one’s own image, to private life (in its most broad), to the protection of personal data, and even, for a sector of doctrine, to computer freedom.
Thus, the right to the protection of personal data is built on the right to privacy and, in addition to implying the obligation of the State to guarantee the protection of personal information contained in archives, databases, files or any other medium, whether documentary or digital, grants the owner of such information the right to control over it, that is, to access, review, correct and demand the omission of personal data that a public or private entity has in its possession.
This right, in accordance with what we mentioned before, and according to GALÁN, is also linked to constitutional and legal rights or principles of great value, such as human dignity, individual freedom, self-determination and the democratic principle. Therefore, the aforementioned author maintains:
The protection of personal data, even recognizing the dynamism of its objective content, derived from technological changes, guarantees the person a power of control – of positive content – over the capture, use, destination and subsequent trafficking of personal data. . Therefore, this right covers those data that are relevant to the exercise of any person’s rights, whether or not they are constitutional and whether or not they are related to honor, ideology, personal and family privacy.
For its part, the right to honor, to one’s own image and even the constitutional guarantees of inviolability of the home and the secrecy of private communications, are closely related to personal information, since they all refer to information related to people, to the physical appearance of a person (image), to that contained within their home, or in the communications they issue.
Legal recognition of fundamental rights relating to personal information
As we mentioned before, and according to the theory of fundamental rights (particularly that of guaranteeism, by Luigi FERRAJOLI), the human rights that have been constitutionally affirmed are those that can be defined as fundamental. One of the essential attributes of these rights, according to their origin and inspiring philosophical elements, is their universality. Hence, they appear reflected in international instruments such as the Universal Declaration of Human Rights (UDHR) of 1948 and other similar ones, although the nomination of these other legal bodies does not include the adjective “universal”.
In this sense, universality carries a strong naturalist influence of the first constitutionalism. Thus, it was thought that if the rights stated were, precisely, natural, then they had to be recognized for all people, taking into account that they all carry the same “nature.” In the words of RIALS, cited by CARBONELL, “if there exists a rational natural order knowable with evidence, it would be inconceivable that it would be consecrated with significant variants depending on the latitudes.”
From that perspective, we could say that in Mexican positive law, the right to the protection of personal data and the guarantees of the inviolability of the home and the secrecy of private communications are expressly recognized in the Constitution (article 16), but not so. the right to intimacy, privacy, honor and one’s own image, as will be specified below.
Direct recognition of the right to protection of personal data is made in article 16 of the Constitution, in which it was incorporated, in the second paragraph, in a reform published in the Official Gazette of the Federation on June 1, 2009, the recognition of the right of every person to the protection of their personal data, access, rectification and cancellation thereof, as well as to express their opposition.
Likewise, the sixteenth paragraph established the terms for the exercise of this right and the cases of exception to the principles that govern data processing (for reasons of national security, provisions of public order, public safety and health or to protect the rights of third parties) to be established by the law that is enacted on the matter (which took place the following year).
The Federal Law on Protection of Personal Data Held by Private Parties (LFPDPPP) of 2010 is the legislation for the development of the constitutional precept just cited, and in its text personal data is defined as “that information referring to an identified person or identifiable”, thus aligning, so to speak, with the most common international definition and in particular with that of the Spanish standard on the matter.
Evidently, Mexican legislation is concerned with defining the principles and criteria to make this right effective and the procedures to put it into effect. The LFPDPPP Regulations develop all these areas more fully.
It should also be mentioned that several years ago there was already legislation that regulated some aspects of the processing of personal data, but it only applies to the public sphere. This is the Federal Law on Transparency and Access to Government Public Information, published in the aforementioned official body on June 11, 2002, which defines what, for the purposes of that Law, is must be understood as personal data in its article 3, section II, adjusting closely to what the legislation applicable to privately owned files would later reflect.
However, although these specific developments exist, as we said, the rights to privacy and intimacy are not expressly mentioned in the fundamental Mexican norm. However, its recognition could be understood through a lato sensu interpretation of the first paragraph of article 16 of the Constitution, where it states:
“No one can be bothered “in his person, family, domicile, papers or possessions, but by virtue of a written order from the competent authority, which establishes and motivates the legal cause of the procedure.” Indeed, some protection for these rights can be derived from this, although it is necessary to mention that the rest of the content of this paragraph basically refers to the procedural field. The same happens with the content of article 7 of the Constitution, which establishes respect for private life as a limit to freedom of the press.
In addition to the above, we must say that even considering that there is a lack of constitutional recognition of the aforementioned human rights, currently this is not an obstacle to claiming their protection and practice, since they can be exercised through conventional means, as established currently article 1 of the constitution. In this, as we mentioned before, it is stipulated that all people will enjoy the human rights recognized in the Constitution itself and in the international treaties to which Mexico is a party.