Undoubtedly, the inclusion of the article 43 (Habeas Data) in the National Constitution of Argentina in 1994 is a milestone in the institutional life of our country. It is so because it defines and specifies some fundamental aspects of the human condition, especially those related to the right to access our own personal information, and in case of lack of updating, falseness or discrimination existing in it, the right to request its updating, correction or deletion.
Although the principles established in the norm are widely legislated in almost all the progressive countries, of course with different nuances, very few authoritative studies about this matter had been carried out in our country. As a result, numerous controversial news articles, opinions, etc. arouse until innumerable Bills flooded the legislative chambers.
The Bill that was eventually approved had arrived in the House of Deputies in June, 1996. This House gave it the preliminary approval without consulting, and sent it to the Senate for them to analyze and discuss it. The Committee of Constitutional Affairs of the Senate opened the debate, invited people and chambers involved, and accepted many of their suggestions that eventually included in the Bill. Finally, the Bill was approved and sent back to the House of Deputies in September, 1996.
Changes included by the Senate were ignored –many of them would have allowed the efficient development of important sectors of the national economy through the use of commercial and financial information.
Finally, without taking into account those who provided studies in comparative law and the consequences of applying the law in several sectors of the national economy, a Bill was approved by own majority at the end of the ordinary period of sessions on November 28, 1996 (3:29 a.m.).
Once the Act Nº 24.745 was approved despite the generalized rejection by large sectors of the national economy and its weakness as an instrument unable to meet the expectations that had justified its inclusion in the constitution, it was reasonably vetoed by the Executive Power. Then, a new Bill on Habeas Data was sent to the Congress, along with many others Bills written by legislators from several political parties. This meant the beginning of a new and intensive debate.
To confirm what was said before, we can mention some of the Bills treated by the Congress: Those submitted by deputies Adaime, Melogno, Nicotra, Valcarcel, and senators Alcides H. Lopez, Ricardo A. Branda, and Eduardo Menem. There was also a Bill submitted by the legislator Gabriela Gonzalez Bass, from the City of Buenos Aires, and many others from several provinces. Finally, a Bill submitted in July, 2000, by senators M. García Arecha and Jorge Genoud, which included articles resulting in restrictions of the stimulus to the good commercial behavior, was sent to the Committees of Constitutional Affairs, Economy and General Legislation.
Facing this flood of Bills full of unclear interpretations of the law, and in order to unite criteria, the Minister of Justice Dr. Granillo Ocampo decided to create an ad-hoc commission formed by representatives of the most important institutions, in which we also participated with the Unión Argentina de Entidades de Servicios (Argentine Service Entities Union), since its chairman was simultaneously the chairman of our chamber, Dr. Rodolfo Martínez (h). This commission eventually produced a Bill that mostly met the expectations of the commercial information companies and was included in congressional debate.
We never stopped exchanging opinions with the entities involved, holding enlightening meetings with senators, deputies and their advisors, or studying the comparative law. Then, with great personal and economic effort we attended the international forum called "Guaranteeing data protection and free flow of information" which was held in Geneva (September, 1997). This forum was entirely devoted to analyze issues such as credit information and personal data protection, and was attended by the most important jurists in the field, as well as delegates from companies and entities from several countries.
The conclusions drawn in that forum, which coincide with our own aspirations of having a practical and modern law similar to those in force in developed countries, plus our own studies as well as researches carried out with similar criteria by other institutions, allowed the creation of a document that clearly reflected the position of our Chamber. This document was considered a significant contribution to the approval, on the part of the Congress, of a law that meets the expectations of all those who inspired it in a country willing to count on an instrument to protect the individuals’ personal assets and his activities in the society.
It was always striking that the topic of Habeas Data was treated in innumerable publications of all sorts, many of which showed a significant lack of knowledge about the meaning and scope of the law, thus causing a great confusion and forcing us to deal with the task of clarification. We also participated in forums, round tables, congresses, etc. where the topic was discussed, as well as meetings with legislators and their advisors.
In the Congress, the topic was analyzed by the corresponding committees of both chambers. Finally, on November 26, 1998, the Senate approved the Bill "Régimen de Habeas Data”(Habeas Data Rules -regulation of article 43 of the National Constitution), and the Habeas Data Act that regulates the article 43, 3rd. paragraph, incorporated in the National Constitution in 1994. Thus, it became the initiating chamber of the Bill.
It was disturbing that the article 47 was included; it had been proposed during the debate without consideration by the committees involved. This article stipulated the deletion of all information about failure to comply with the obligations up to the moment when the law came into force. This likely made the habitual debtor be mistaken for the good payer that accidentally paid something with delay.
It was surprising the rejection to this article even on the part of colleagues of the same party. They had solid arguments that were coincident to those supported by other parties. This let us foresee a space to discuss future changes, even though the Bill had been preliminarily approved by the Congress.
Then, the House of Deputies began to discuss the Habeas Data Act, which already had the preliminary approval of the Senate. In the meantime, we reinforced our actions to explain clearly our intention of getting a law according to the current regulations on the matter.
Therefore, we interacted with the different parliamentary commissions involved in the Bill and focused on every aspect that meant a restriction to our activity. We were always open to dialogue and successfully highlighted the negative impact that such unsuitable and unfeasible demands would have had in several sectors of the national economy.
It is worth pointing out the numerous meetings held with legislators of both houses, such as Elisa Carrió, Ana María Mosso, César Arias, Felipe Adaime, Alberto Natale, José I. Cafferata Nores, Marcelo Stubrin, Guillermo Francos, Héctor Polino, Jorge R. Lemes Lenicov and Fernando Llamosas, as well as the Sub-secretary of Small and Medium Sized Enterprises, Dr. Ana Kessler, and the deputies’ advisors Oscar Massei, Juan Carlos Suarez, Elsa Melogno, Carlos Soria, Nilda Garré , Norma Godoy, María I. Chaya, Juan Carlos Maqueda, Amelia Isequilla, Rodolfo Gabrielli and Humberto Roggero.
Meanwhile, we remained close to entities involved in this matter. We also established contact with various consumer rights agencies to which we offered help to assist people undergoing problems with credit information, and claiming for their rights.
Also, we made great effort to make the legislators to know about our position regarding the Habeas Data Act. We sent numerous letters, some of them are worthy of special mention:
Letter dated on May 5, 1999, to the Habeas Data Sub-commission of the House of Deputies. Re: “The role of Credit Information in the Society of Information”. This was our first document to warn of the damage resulting from the generalized disclosure of debtors that was proposed in the Bill with preliminary approval of the Senate. Likewise, we suggested innovative methods to assure the transparency and appropriate balance between privacy and right to information.
Letter dated on May 13, 1999, to all the Deputies: Re: “Urgent Call to Reflection”. Facing the possibility that the Bill “Régimen de Bases de Datos de Riesgo Crediticio” (Credit Risk Databases Regulation) was approved without changes, we stated the arguments that justify our stand.
Letter dated on June 7, 1999, to all members of the Committee of Constitutional Affairs and the Presidents and Vice-Presidents of the Justice, Budget and Treasury, General Legislation and Criminal Legislation Commissions. Re: “Habeas Data – Imminent Approval of the Commission Report”. We questioned the article 26, sections 2 and 4 according to the reasons expressed in the letter, and presented our criteria.
Letter dated on June 3, 1999, to the same legislators, Re: “Habeas Data Act – Commercial Reports – Last-minute Modifications”. In this letter we pointed out the serious consequences that the unjustified modification of the article 27, section 5, written by the Senate, would have for the informative activity efficiency.
Letter dated on June 18, 1999, Re: “Habeas Data Act – Commercial Reports – Meeting of the Committee of Constitutional Affairs”. In this document we expanded on the content of our memorandum dated on June 13, in which we had explained clearly that every subsequent notification that our sector should make, increases the service cost unnecessarily, to the detriment of the citizens and the credit system as a whole.
It is worth mentioning that our Chamber had the extraordinary chance to put forward the most burdensome topics of the norm that was being written before the members of the Committee of Constitutional Affairs. It was interesting that the legislators considered some of our suggestions appropriate, and most of the articles we questioned were neutralized.
As we said before, we continued participating in forums on this matter, for example the “1st. Conference on Habeas Data and Information Market”, organized by the Law and Social Sciences Students Center of the University of Buenos Aires (Aula Magna, May 17, 2001), which gathered prominent experts in the following topics: “Legal Nature of Habeas Data” " - Alberto Dalla Via, Professor with Tenure of Constitutional Law; "Habeas Data in the Argentinian Jurisprudence " - Marcela Basterra, Associate Professor of Constitutional Law; “Current Issues on Information Technology Law” - Jorge Amaya, specialist in Information Technology Law, "General Aspects of the Data Protection Act " - Néstor Sagüés, Professor with Tenure of Constitutional Law; "The Information Technology Market and its problematic" - Pedro Dubié, advisor on the matter for the Chamber of Commercial Information Companies; "Regulation of the Habeas Data Act" -Osvaldo Gozaini, Professor with Tenure of Procedural Law (in charge of the project that would regulate the Act); "Constitutional Regulation of Habeas Data " - Calógero Pizzolo, Associate Professor of Constitutional Law.
Equally important was our participation in the seminar coordinated by the Culture Commission of the University of Belgrano held on June 3, 2001, in the Park Hyatt Hotel, called “Commercial Reports, Habeas Data”. There was a significant attendance of lawyers and the subject matter was deeply, respectfully and constructively discussed.
It is worth mentioning that in the special edition of May 19, 1999, the prestigious magazine Argentine Jurisprudence, which is broadly known in the field of Law, published an enlightening article by Dr. Pedro Dubié entitled “Analysis of the parliamentary debate on Habeas Data in relation with credit information” that received well-deserved praise.
And the ups and downs in this story ended with the approval of the Habeas Data Act:
Finally, on September 14, 2000, the House of Deputies approved the Act (previously sent by the Senate including the changes already mentioned), which our Chamber considered satisfactory for our activity. It presented significant modifications to the Bill written by the Senate, such as the deletion of the article 47 on disclosure of debtors, and the modification of the article 26 regarding the maintenance of the information, including a differential treatment for those breaches of obligations already resolved.
Once approved by the House of Deputies, the Act was sent to the Senate for its final approval. At that moment, we resumed our already habitual hard work with the legislators involved in the matter.
Lastly, on October 4, 2000, the Senate discussed and approved the “Personal Data Protection Act”, registered as Act Nº 25.326/00. Unfortunately, it included the article 47 which had been deleted by the House of Deputies, but was incorporated again according to the original version approved by the Senate.
Likewise, it was created the Regulatory Body, which would be in charge of carrying out the necessary actions to fulfill the objectives and requirements established in this Act, as well as implementing its regulation. It would have functional autarky and act as a decentralized body in the sphere of the National Ministry of Justice.
Regarding the considerations related to the approved Act that were made by our Chamber, it was concluded that, in general, it should be taken as an acceptable framework for our activity, envisaging that its regulation would allow changes, and we would be able to unite efforts with other entities involved, such as the Argentine Chamber of Commerce, the Association of Argentine Banks (ABA), the Argentine Union of Service Entities (UDES), The American Chamber of Commerce (AMCHAM) and the Argentine Federation of Commercial Data Business Entities (FEEICRA). All these organizations immediately agreed with the idea of supporting the presidential veto of the most conflictive points. We suggested, and it was accepted, that the institutions involved as well as our Chamber itself do the presentations independently and as soon as possible, taking into account that the approval of the Act was imminent.
Therefore, we addressed the President through the Chief of the Cabinet of Ministers, to submit our demands with such strong arguments that the Executive Power, by promulgating the Decree 995/2000, vetoed the controversial article 47 as well as some sections or the article 2 regarding the Regulatory Body.
As a result, the last pending issue was the regulation of the Act which, as we said before, should be treated in the sphere of Ministry of Justice and Human Rights.
From then on, the implementation of the Act begins, and we were actively involved in the process.
S (LEY 25.326)