Spain

Language of privacy

Native concepts that encompass equivalent phenomena as the English word ‘privacy’

  • Intimacy receives a restrict interpretation. It is identified with the most reserved sphere of the life persons (home where you develop your daily life, sphere where are integrated your beliefs, feelings, memories, sexual relationships, family ties, health, etc) In this sphere the person decides who is allowed to get inside.
  • Privacy is a bigger personal sphere. It is related to the activities that the person develops in the community or collectively and in small groups and he/she wants to preserve them from or against other’s knowledge.

Both concepts represent two complement and interdependent aspects of the human life.

Within this concept can be establish different levels according to the extent of protection required or according to the possibility of access in each field.

There are other definitions which highlight two dimensions in the concept of intimacy: On the one hand, a traditional negative or defensive dimension which makes reference to a private sphere against any foreign interference and, on the other hand, a current positive and active dimension, which is in keeping with the technology-advances societies, and it makes reference to an active faculty of control related to the data which are relevant for each person.

Other definitions:

  • Intimacy, is the right to decide by oneself in which field is going to share with others his/her thoughts, feelings and the events of his/her personal life” (Corte Suprema “in re”, “Ponzetti de Balbín”, Jurisprudencia Argentina 1985; I: 513; It is defined as a fundamental right derived from the human dignity and it implies the existence of a private and preserved field against the other’s actions and knowledge, in order to maintain a minimum quality of life (Tribunal Constitucional de España 08/11/1999, La Ley 2001; D: 545).
  • Privacy, is the field where the intentional actions of the persons are developed and they not affect to third person. These actions can be known by them and its scope is extended to three aspects: a) The right of the person to be let alone; b) the right to not spread data about the personal life that could defame him or her; c) the personal autonomy concerning the possibility of choosing the owns style of life (UNESCO, Declaración Internacional sobre los Datos Genéticos Humanos. 2003, art. 14).

There is another concept that is used by the national doctrine, jurisprudence, etc. The right to self-determination in the informative sphere which makes reference to the faculty of control the personal data and the access to them by third persons. Several authors consider that this fundamental right is recognised in the Article 18.4 of our Spanish Constitution.

Seminal works on the subject of privacy itself (chronological order)

  • BÉJAR, H., “Individualismo, privacidad e intimidad: precisiones y andaduras”, en AAVV, De la intimidad, C. CASTILLA DEL PINO (ed.), Barcelona, Editorial Crítica, 1989.
  • MARTÍNEZ BULLE GOYRI, V. “Genética Humana y Derecho a la Vida Privada”, Cuadernos del Núcleo Estudios Interdisciplinarios en Salud y Derechos Humanos. Genética Humana y Derecho a la Intimidad, México, Universidad Nacional Autónoma de México, 1995, p. 47.

Some authors highlight a negative dimension –sphere protected from other’s interferences- in relation to the concept of intimacy. For example:

  • J. CASTAN TOBEÑAS, who considers that the right to the private life protect the inviolability of this against the foreign interferences, Derecho Civil español, común y foral, 12. ª ed., t. I, vol. II, Madrid, Reus, 1978, p. 374.
  • BAJO FERNÁNDEZ M, considers that the private sphere is the personal field where each one finds the possibility of development of his or her personality. It is a personal sanctuary preserved against the public curiosity, absolutely necessary in order to get the human development and where the personality takes root, “El secreto profesional en el Proyecto de Código Penal”, Anuario de Derecho Penal y Ciencias Penales, sep-dic 1980, p. 599.
  • LÓPEZ JACOISTE J. J., the right to intimacy protect agains the foreign interferences, sights, publications, data capture, etc., “Intimidad, honor e imagen ante la responsabilidad civil”, en el libro Homenaje a J. B. VALLET DE GOYTISOLO, vol. IV, Madrid, Junta de Decanos de los Colegios Notariales de España, Consejo General del Notariado, 1988, pp. 557 y 558.
  • From a philosophic point of view, M. GARCÍA MORENTE considers that the private life come across in infinite gradations and shades that oscillate between two poles. One is related to the absolute publicity, when the person entirely disappear under the social apparel. The other one is related to the absolute loneliness, where the person lives his or her authentic life. This author considers that the whole private life can be compared with a cone, in which the base’s surface is still in contact with the world of the public relationships. But, as the planes get closer to the vertex and move away from the publicity, they reduce its extension. When the planes finally arrive to the vertex, the private life suffers a condensation and it is concentrated in one point: in the loneliness of the living the self. In this point, nobody else but oneself can have real access”, cit. in J. Mª. DESANTES, “Intimidad e información, derechos excluyentes”, Nuestro tiempo, núm. 213, marzo 1972, pp. 17 y 18.

There are other works which highlight the positive dimension of the intimacy or privacy concept. The privacy is defined as the power of control related to the data that can affect each person.

  • L. M. FARIÑAS MATÓN considers that the intimacy is defined not only as the right of the person to isolate, but also as the liberty of choosing the opening of his or her own experiences. Therefore, the intimacy has two aspects related to the possibility of “shut oneself” and to the possibility of choosing “not to be closed”.
  • V. FROSINI, “La tutela de la privacidad: de la libertad informática al bien jurídico informático”, en Revista del Colegio de Abogados de Buenos Aires, núm. 2, 1989, p. 96; - L. ROJO JAURÍA, “La tutela civil del derecho a la intimidad”, Anuario de Derecho civil, fascículo I, 1986, p. 148; P. LUCAS MURILLO DE LA CUEVA, El derecho a la autodeterminación informativa, Madrid, Tecnos, 1990, pp. 120 y 121.
  • X. O’CALLAGHAN MUÑOZ, “El derecho a la intimidad”, en Estudios de derecho civil en homenaje al profesor J. L. LACRUZ BERDEJO, vol. I, Barcelona, Bosch, 1992, p. 647.
  • J. MARTÍNEZ DE PISÓN CAVERO, El derecho a la intimidad en la jurisprudencia constitucional, 1.ª ed., Madrid, Civitas, 1993, p. 55.
  • L. GARCÍA SAN MIGUEL highlights the negative side of the intimacy concept, related to the right to not be known, in some aspects, by other persons. It is the right to the secret. But, at the same time, this author highlight the importance, -in order to create our life related to the social relationships-, of the possibility to choose when we want to appear and disappear. Ant that is only possible if we can control the knowledge that other persons obtain from our life, “Reflexiones sobre la intimidad como límite de la libertad de expresión”, en L. GARCÍA SAN MIGUEL (ed.), Estudios sobre el derecho a la intimidad, Madrid, Tecnos, 1992, pp. 18 y 19
  • PÉREZ LUÑO, A. E., “Perfiles morales y políticos del derecho a la intimidad”, Anales de la Real Academia de Ciencias Morales y Políticas, vol. 73, 1996, pp. 311-339.
  • NICOLÁS JIMÉNEZ, P., La protección jurídica de los datos genéticos de carácter personal, Bilbao-Granada, Comares, 2006.

Eurobarometer

Relevant interests expressed in different contexts

“Confidentiality of the genetic data” is available at: http://www.eticacyt.gov.ar/datos_geneticos.pdf

Specific legislation on the subject of genetic databases and/or biobanks

In Spain the Law 14/2007, of 3 July, on Biomedical Research, regulate in its Title V some aspects related to the genetic analysis. In general terms, it regulates emerging matters related with the current expansive tendency of biomedical research, such as, the undertaking of genetic analysis, the access and use of its results, as well as the obtaining and use of human biological samples. In spite of the enormous difficulties to establish the limits between research and diagnosis in the area of genetic analysis, due to substantive and systematic coherence and in view of the important rights of persons which might be involved in these type of analysis, this Law could not renounce to establish a legal framework in which we must take a stance in the undertaking of genetic analysis for any purpose, including diagnostic.

To this respect, the Law, at the same time that it prescribes a set of guarantees in relation with genetic analysis and biological samples within the ambit of the protection of data of a personal nature, it creates a set of norms in order to provide trust and safety to researches, and the public and private institutions in their acts within the sector, eliminating the current legal uncertainties. Besides other normative principles already mentioned, the guiding principles set are those of accessibility, equity and quality in the processing of data, it requires the previous consent and foresees the scenario of anonimised biological samples. Lastly, specific rules are established in relation with the deceased and with pre-embryos, embryos and foetuses, in respect to which the protection of data is also guaranteed and the duty of confidentiality is established. It is also noteworthy, that the Law sets out the need to accredit the centres and persons capable to undertake genetic analysis.

The regulation on the obtaining, conservation, use and assignment of biological samples is likewise object of a detailed regulation in chapter three of this title. As is logical, the legal framework turns once again on the consent of the subject source of the samples and on the previous information that must be provided to this respect. In so far as the disjunctive on the possibility to grant a completely generic or a specific consent on the use or latter uses of the sample, the Law has chosen an intermediate and flexible regulation, in that the initial consent may provide coverage, if in the information previously provided to the subject source there has been a provision about later researches related with the initial, including the researches that may be undertaken by third parties and the assignment of the data or of identified or identifiable samples to them. Anyways, a transitory regulation has been established in respect to biological samples obtained for any purpose before the entering into effect of this Law, in order not to hinder their use for research while at the same time looking after the interests of the subject source.

In close relation with the use of samples of human origin, this Law defines and clears up the legal status of biobanks and differentiates them from other collections of biological samples that could exist for biomedical research purposes, notwithstanding that in both cases these must be registered in the National Biobank Registry. A sole system of registry is set up, whichever the finality of the bank, including those for clinical use in patients, in an exclusive or shared manner with those of research, and notwithstanding the specific measures that must be developed by regulation for the functioning of each bank in accordance to its respective nature and purposes. It also establishes that the authorisation for the creation of biobanks shall correspond to the appropriate entities of the autonomous community, except for the initiatives that the Institute of Health Carlos III could take on t he creation of national banks of biological samples for research in accordance with the general welfare, in which case the authorisation shall correspond to the Ministry of Health and Consumption.