Sobre la limitación del derecho a la protección de datos en el ámbito electoral y el nivel de predeterminación legal constitucionalmente exigido (pag. 213-222)

Resumen

On its Judgment 76/2019, of 22 May, the Spanish Tribunal Constitucional has declared the invalidity of Section 58 bis of the Organic Law 5/1985, of 19 June, on the general electoral system, as incorporated by the Organic Law 5/2018, of 5 December, on personal data protection and safeguard of digital rights. In accordance to Recital 56 of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, the Section mentioned above stated the possibility for the political parties to compile personal data on people's political opinion in the course of the electoral process. The unconstitutionality of such a provision has been declared because (1) the reasons of public interest for the processing of personal data on people's political opinion had not been identified, (2) the legal provision lacked certainty and predictability as required by the Spanish Constitution, and (3) appropriate safeguards had not been established. This brief comment on the Judgment argues that the Spanish Tribunal Constitucional has come to the right decision and tries to identify the public interest that would enable the Spanish legislator to regulate such a processing of personal data.