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EPIC --- Privacy and Human Rights Report 2006

Republic of Ecuador

Constitutional Privacy Framework

Different articles of the Constitution of Ecuador[2088] protect the personal and family intimacy, the inviolability and confidentiality of correspondence, the inviolability of the home, freedom of the press, and the freedom of opinion and expression regardless of the medium of communication.[2089] Article 23 of the Constitution specifically recognizes and guarantees the following rights to individuals:

• The right to honor, good reputation, personal and family privacy (intimidad personal y familiar);[2090]
• The protection of the name, image and voice of the individual;[2091]
• The freedom of conscience and religion, individually or as a member of a group, in public or private. Individuals can freely practice their religion;[2092]
• The inviolability and confidentiality of correspondence. Correspondence can only be withheld, opened and examined in cases stipulated by law. Confidentiality will be maintained for related matters that may lead to the examination of personal information. The same principle will be observed with any other type or form of communication;[2093] and,
• The inviolability of the home. No one can enter or inspect an individual's home without either authorization from the person concerned or a judicial order, as established by law.[2094]
  

The Law of Constitutional Control creates habeas data. Habeas Data can be used by anyone – citizens and foreigners, public and private entities – wishing to access documents, databases or reports about themselves or about the properties they hold. Citizens who want to know the use and purpose given to their data, are able to use habeas data to request information about them.[2095]

The purpose of habeas data is to ensure that the data controller provides the data subject with complete, clear, and truthful information; that the data subject be able to obtain direct access to their information; that the data controller correct, delete and not disclose information to third parties; and that the data subject obtain certifications or verifications that the data controller has rectified, eliminated, or not disclosed, the information.[2096]

Habeas data does not apply where it infringes upon professional confidentiality, where it could obstruct justice, or where the documents solicited are secret for reasons of national security. It is not possible to delete data when the law requires that public or private records be maintained.[2097]

The Law of Constitutional Control (Ley del Control Constitucional)[2098] was enacted on July 2, 1997, before the new Constitution of 1998 came into force.[2099] On July 9, 2001, the Constitutional Court proposed to the National Congress a new Project of Organic Law of the Constitutional Court (Proyecto de Ley Orgánica del Tribunal Constitucional) that should be in accordance with the new Constitution and will replace the Law of Constitutional Control. The National Congress has not approved the bill yet.

Statutory Rules on Privacy

Ecuador does not have a comprehensive data protection act. However, numerous specific legal regulations protect the right to privacy. Article 14 of the Telecommunications Law (Ley de Telecomunicaciones) recognizes the right to secrecy and privacy of the telecommunications. This article prohibits third persons from interceptng, interfering with, publishing or disclosing without the parties' consent, information transmitted by any means of telecommunications services.[2100]

In March 2001, a Law on Persons with Disabilities (Ley sobre Discapacidades del Ecuador) was enacted.[2101] This law creates a National Registry of Persons with Disabilities. The registry will be administered by the Center of Information of the National Council of Persons with Disabilities (Centro de Información del Consejo Nacional de Discapacidades).[2102]

A Law of Transparency and Access to Public Information was adopted in May 10, 2004.[2103] The law provides citizens and foreigners with the right to know and obtain information about acts, contracts with public institutions and projects financed by public resources. The law requires that public institutions or institutions that work with public resources publish information of their activities on an Internet portal, except the information classified as "secret" for reasons of national security.[2104] All information older than 15 years should be declassified. Public officials who deny access to information shall be sanctioned with a fine or the suspension of their position.

A law on e-commerce and electronic signatures,[2105] enacted in 2000, establishes that contracts and agreements entered into through the use of electronic signatures shall be equally valid and effective as those executed on paper. Though there are various human rights organizations in Ecuador,[2106] not one works for the protection of privacy.

Voting Privacy

Voting is compulsory for those between the ages of 18 to 65; for those older than 65 voting is optional.[2107] October 2, 2004, marks Ecuador's first attempt at electronic voting. A pilot election project was done in the capital, Quito, under the direction of the Electoral Supreme Tribunal. The project selected a group of qualified voters by means of a random process using computer matching to ensure randomness. Only the election results, which include no personally identifiable information, were transferred to the Electoral Supreme Tribunal for processing.

International Obligations

Ecuador signed the American Convention on Human Rights on November 22, 1969.[2108] 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."

[2088] Constitution of 1998, available at <http://www.georgetown.edu/pdba/Constitutions/Ecuador/ecuador98.html> (in Spanish).
[2089] Id. at Article 23, Subsections 9 and 10.
[2090] Id. at Article 23, Subsection 8.
[2091] Id. at Article 23, Subsection 8.
[2092] Id. at Article 23, Subsection 11.
[2093] Id. at Article 23, Subsection 13.
[2094] Id. at Article 23, Subsection 12.

[2095] Article 34 of the Law of Constitutional Control (Ley del Control Constitucional), available at <http://www.uc3m.es/uc3m/inst/MGP/JCI/02-ecuador-leycontrolconstitucionalidad.htm#II.II> (in Spanish).

[2096] Constitution of Ecuador, Article 38.

[2097] Id. at Article 36.

[2098] This law indicates the activities of the Constitutional Court (Tribunal Constitucional) like an organ that controls whether the laws that are approved are in agreement with the Constitution, available at <http://www.viviendolademocracia.org/download/l_control_constitucional.doc> (in Spanish).
[2099] This law has not been substituted, nor updated, and can only be applied where there is no conflict between the old Constitution and the new one. This unusual situation has given rise to countless problems for the Constitutional Court that applies the Constitutional Control Law. See Constitutional Court Law (Ley de control constitucional), available at <http://www.tribunalconstitucional.gov.ec/normativas.asp?ss=7> (in Spanish).

[2100] Special Telecommunications Law (Ley Especial de Telecomunicaciones), Law No. 184 Official Register No. 996, August 10, 1992, available at <http://www.supertel.gov.ec/PDF/Ley_Teleco_reforma.pdf> (in Spanish).

[2101] Available at <http://www.conadis.gov.ec/legislacion/ley.html> (in Spanish).
[2102] Article 14 of the Reglamento General de la Ley Reformatoria de la Ley de Discapacidades (General Ruling of the Law Reforming the Law on Persons with Disabilities), available at <http://www.conadis.gov.ec/legislacion/reglamento.html> (in Spanish).

[2103] Law of Transparency and Access to Public Information, (Ley Orgánica de Transparencia y Acceso a la Información Pública), May 10, 2004, available at <http://probidad.org/regional/legislacion/2004/LeydetransparenciaEcuador.pdf> (in Spanish).
[2104] The law establishes that public institutions should implement Internet portals within a year.

[2105] Ley de Comercio Electrónico, Firmas Y Mensajes de Datos, available at <http://www.corpece.org.ec/documentos/ley/ley_ce.doc> (in Spanish).
[2106] For a comprehensive list of NGOs working in Ecuador, see <http://www.ecuadorexplorer.com/html/ngo_list.html> (in Spanish).

[2107] The World Fact Book, available at <http://www.cia.gov/cia/publications/factbook/geos/ec.html#Govt>.

[2108] 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).