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EPIC --- Privacy and Human Rights Report 2006

El Salvador

Constitutional Privacy Framework

Several articles of the Constitution of El Salvador[2109] protect the right to privacy, which includes the inviolability of the home, the right to honor, personal and family intimacy, and the right to one's own image.[2110] The Constitution also protects the inviolability of any kind of communications by expressly prohibiting wiretapping[2111] and provides that any intercepted communication cannot be used in any proceeding, except in insolvency and bankruptcy proceedings.[2112] Every individual can express his thoughts freely whenever and in whatever way he chooses, unless it is against the public order, offends the morals, the honor or intrudes upon the private life of other persons (Article 6).

The Constitution does not contain any specific remedy against infringement to the right of privacy, unlike constitutions of other Latin American countries.[2113] However, the Constitution offers with the "Acción de Amparo" a general remedy that comes before any type of actions or omissions of any authority and before final decisions, pronounced by administrative dispute courts, that violate a fundamental right or impede its exercise.[2114]

According to the Law of Constitutional Proceedings (Ley de Procedimientos Constitucionales), every person has the right to request an "Acción de Amparo" before the Constitutional Chamber of the Supreme Court of Justice, for violations of constitutional rights.

Statutory Rules on Privacy

El Salvador does not have a comprehensive law that establishes general data protection principles for the processing of personal data. The Regulation of the Penitentiary Law[2115] establishes rules protecting the privacy of inmates by adopting many of the principles and rights of the European Data Protection Directive. It provides that the penitentiary administration can only give the inmate's personal data to governmental institutions and public entities after getting the inmate's written consent, and with adequate justification of the usefulness of the data, the Attorney General's Office and judges being exempted.[2116] International transfers of personal data can only be carried out when they are needed for cooperation or assistance in law enforcement or judicial matters, pursuant to applicable international agreements. Inmates' political opinions, religious or philosophical beliefs, and health records, can only be disclosed or made public to persons, public or private institutions, national or international organizations, with the inmate's written consent, except for public interest reasons covered by law.[2117] The same Regulation contains data access and correction provisions.[2118] The penitentiary administration must adopt security measures to protect the integrity of the data and keep it confidential, even after the inmate has left the prison.[2119]

The Telecommunications Law protects the right to the secrecy of communications. It makes the act of intentionally interfering with and intercepting phone communications a serious offense sanctioned with heavy fines.[2120]

The Penal Code identifies as a crime the invasion of other people's privacy by taking possession (tomar posesión) of their confidential data of a personal or familial character that is contained in public or private databases, as well as the possession of written communications or any other document directed to them. The Code slightly sanctions the disclosure of data to third parties, and sanctions more severely if the data controller or data processor of the filing system commits the offense.[2121] The Code also sanctions with an imprisonment between six months and one year, the person who, with the purpose of intruding upon the privacy of others, intercepts, impedes or interrupts a telegraphic or telephone communication, or uses instruments or wiretapping devices to listen, transmit or record sounds, images or any other communication signs.[2122]

Privacy Case Law

In Boris Rubén Solorzano v. Dicom, CentroAmerica, S.A. de C.V.[2123] and General Automotriz, S.A. de C.V.,[2124] the Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia) established an important precedent for privacy in El Salvador. It was the first time the Constitutional Court made a reference to the so called "right to informational self-determination" (derecho a la autodeterminación informativa) as a manifestation of the right to privacy and which purpose is to protect the individual's information contained in public or private records, as well as, the right of access to one's own information to ask for the correction, update, modification and elimination of data. The Court reaffirms that the right to privacy in the field of computer science (en el ámbito informático) implies that: (a) every data subject has the right to access his personal information, especially the information stored in computer databases; (b) every data subject must have the possibility and the right to control, in a reasonable way, the distribution and transmission of any information that concerns him; and (c) the judicial system must have a procedure that provides effective means of redress. In the same case, the court also explained the right to be forgotten (derecho al olvido): every data subject's credit information stored in a public or private database should be eliminated from it a certain time after the information was created; and the use and handling of personal information must be justified.

Medical Privacy

Women have very little privacy concerning their reproductive health in El Salvador, where abortion is a serious felony. Although abortionists may also face charges, their prosecution is much less common, as many abortions are performed by anonymous “back alley” services. In the course of investigating an alleged abortion, law enforcement officials often conduct interrogations of friends, family and neighbors of the accused, during which sensitive information concerning the woman’s health and pregnancy is both requested and revealed.[2125]

Doctors are legally required to report abortions to police; however, this requirement conflicts with the doctor’s duty to keep the patient's medical information confidential. Nurses are similarly required to report evidence of abortion in direct conflict with their ethical obligations. Many doctors report inconclusive evidence of abortion out of fear of having their non-disclosure reported by nurses. Other doctors refuse to ask questions that may explain physical evidence of reproductive trauma, seeing this as the only loophole to the reporting requirement.[2126] An abortion rights advocacy group recently released a study that concludes that post-abortion care providers who breach patient confidentiality endanger women’s health and violate ethics. The report states that “although ethical and human rights standards oblige providers to respect patients’ privacy, 80% of obstetrician-gynecologists mistakenly believed that reporting was required. Most respondents (86%) knew that women delay seeking care because of fear of prosecution, yet a majority (56%) participated in notification of legal authorities.”[2127]

Surveillance of NGOs

Members of the Among Friends Association received death threats and were reportedly under surveillance in an attempt to halt the organization's work on behalf of lesbian, gay, bisexual and transgender people. The organization's director, William Hernández, was threatened at gunpoint outside the organization's office. The office has also been a target of threats, and vandals searched the organization’s files and stole various planning documents. Although the incidents were reported to the authorities, investigations proved superficial, and no one had been brought to justice by the end of 2006.[2128]

International Obligations

In December 2003, El Salvador and others countries from Central America, signed a Political Dialogue and Cooperation Agreement with the European Union and its member States.[2129] The Agreement provides that its signatories agree to cooperate to protect the processing of personal data and other data, with a view to promoting the highest international standards. The signatories also agree to work towards the free movement of personal data between their jurisdictions, with due regard to their respective domestic legislation.

El Salvador is a signatory of the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the American Convention on Human Rights on November 22, 1969.[2130] The Convention provides that every person has "the right to have his honor respected and his dignity recognized." Additionally, "no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. And everyone has the right to the protection of the law against such interference or attacks."[2131]

[2109] Political Constitution of the Republic El Salvador 1983, updated as of July 2000. (Constitución Política de la República de El Salvador de 1983, actualizada hasta reforma introducida por el DL No. 56, del 06.07.2000), available at <http://www.georgetown.edu/pdba/Constitutions/ElSal/ElSal83.html> (in Spanish).
[2110] Article 2 of the Constitution guarantees the right to honor, personal and family intimacy, and the respect of one's own image.
[2111] Article 24 of the Constitution.
[2112] Id.

[2113] Habeas data has different meanings in different countries in Latin America. In some Constitutions, like the Peruvian one, habeas data is used to refer to the "constitutional guarantee process," which protects not only the right of an individual to access information about himself (right to informational self-determination) but also the right to access whatever information an individual may require from any public body (freedom of information and access to government records). However, in Argentina, habeas data is "a right" by which every person may file an action to obtain knowledge of the content and purpose of collection of all the data pertaining to him contained in public records or databanks, or in private databanks whose purpose is to provide reports. In the case of false information or its use for discriminatory purposes, a person will be able to demand the deletion, correction, confidentiality or update of the data contained in the above records.
[2114] Article 247 of the Constitution; see also Article 12 of the Law of Constitutional Proceedings (Ley de Procedimientos Constitucionales) that provides that "[a]ll persons can request an acción de amparo before the Constitutional Court of the Supreme Court of Justice, for violation of the rights granted in the Constitution," available at <http://www.uc3m.es/uc3m/inst/MGP/JCI/02-elsalvador-leydeprocedimientosconstitucionalesl.htm> (in Spanish).

[2115] Regulation of the Penitentiary Law (Reglamento General de la Ley Penitenciaria), November 14, 2000, available at <http://www.oas.org/juridico/spanish/gapeca_sp_docs_slv2.pdf> (in Spanish).
[2116] Id. at Article 19.
[2117] Id. at Article 20.
[2118] Id. at Article 21.
[2119] I Regulation of the Penitentiary Law, supra at Article 22.

[2120] See Articles 29, 31 and 36 (a) of the Telecommunications Law (Ley de Telecomunicaciones), available at <http://www.asamblea.gob.sv/leyes/19960807.htm> (in Spanish).

[2121] Articles 184 and 185 of the Penal Code (Código Penal), approved by Legislative Decree No. 883 (aprobado mediante Decreto Legislativo No. 1030 y modificado mediante Decreto Legislativo No. 883), June 27, 2002, available at <http://www.oas.org/juridico/MLA/sp/slv/sp_slv-int-textes-cp.html> (in Spanish).
[2122] Salvadoran Penal Code, Article 186 (about the interception of communications).

[2123] Dicom/Equifax is a multinational company with offices in several countries around the world and is dedicated to provide information services and products. In 1996, Dicom/Equifax started its operations in El Salvador in order to obtain credit information and credit rating of potential customers with the purpose of analyzing their credit behavior, available at <http://www.equifax.com.sv/informativo/index.html> (in Spanish).

[2124] Sentencia de la Sala Constitucional de la Corte Suprema de Justicia, M 118-2002, (El Salvador, March 2, 2004), available at <http://www.jurisprudencia.gob.sv/exploiis/indice.asp?nBD=1&nDoc=32047&nItem=33366&nModo=1>.

[2125] Jack Hitt, “El Salvador: Pro-Life Nation,” The New York Times, April 9, 2006, available at <http://www.nytimes.com/2006/04/09/magazine/09abortion.html?ex=1185163200&en=56d5e8d1f93114ca&ei=5070>.

[2126] Id.
[2127] Heathe Luz McNaughton, MPH, et al., Patient Privacy and Conflicting Legal and Ethical Obligations in El Salvador: Reporting of Unlawful Abortions 96 American Journal of Public Health 11 (2006). Abstract available at <http://www.ajph.org/cgi/content/abstract/96/11/1927>.

[2128] Amnesty International Report 2007, El Salvador, available at <http://thereport.amnesty.org/eng/Regions/Americas/El-Salvador>.

[2129] Acuerdo de Cooperación y Diálogo Político entre Europa y América Central (EU-Central America Political Dialogue and Cooperation Agreement), available at <http://europa.eu.int/comm/external_relations/ca/pol/comments.htm>, and at <http://europa.eu.int/comm/external_relations/ca/pol/pdca_12_03_es.pdf> (in Spanish).

[2130] See Convención Americana sobre Derechos Humanos Pacto de San José de Costa Rica, available at <http://www.oas.org/juridico/spanish/firmas/b-32.html> (in Spanish).
[2131] According to the Salvadoran Constitution, international treaties are hierarchically superior to the law but are below the Constitution. In case of conflict between the Constitution and the Treaty, the Constitution prevails.