Recommendations approved at the Internet and Judicial System Seminar held in the city of Heredia (Costa Rica), on July 8th and 9th, 2003 with the participation of the judiciary, civil society organizations and academicians of Argentina, Brazil, Canada, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Dominican Republic and Uruguay.
notes are summaries of documents referenced and are not part the rules
Almost no Judicial Branch Web site has defined the purposes of the
collection and dissemination of information. The Michoacán
transparency acts forced a definition of these purposes. The
most relevant reference is the Committee of Ministers of the European
N° R (95)11 which have the following
- to facilitate the work of the legal profession by supplying rapid, complete and up-to-date information;
- to provide information for all persons directly or indirectly interested in a matter of jurisprudence;
- to make available more quickly new court decisions, especially in areas of law under development;
- to make available a larger number of court decisions concerning both questions of law and questions of fact (for example amount of compensation, of maintenance, length of a sentence, etc.);
- to contribute to the coherence of jurisprudence (reliability of law - "Rechtssicherheit") without introducing inflexibility;
- to enable law-makers to analyse the application of laws;
- to facilitate research on jurisprudence;
- in certain cases, to furnish information for statistical purposes.
The basis for this rule is the
framework for Information Technology Act (Quebec,
Canada, Article 24. "The use of extensive search functions in
a technology-based document containing personal information which is made
public for a specific purpose must be restricted to that purpose.”)
This rule is based on the article 8.1 of the Directive
95/46/CE directive of the European Parliament and the
European Council as well as on the laws which define sensible data in Argentina
(art. 2), Chile
(art. 1.5.), Paraguay
(art. 4) and on the bills of Costa
Rica, Ecuador, Mexico and Uruguay. Also see Recommendation
01-057, November 21th, 2001, of the National
Commission for Data Processing and Liberties:
(1) the publishers of case law databases which can be freely accessed on Web sites, in order to respect the right to privacy of the persons concerned and the indispensable right to oblivion should refrain from mentioning the names and addresses of parties to proceedings or witnesses therein;
(2) the publishers of case law databases that can be accessed either via the Internet against subscription or bond payment or by CD- ROM, should refrain in the future, in order to respect the right of privacy of the persons concerned, from mentioning the addresses of parties or witnesses therein;
All Latin American legislations are unanimous in supporting the protection
of children and teenagers. Many countries of this region have particular
categories of sensitive data, while others are introducing these
categories in new bills. In some cases the enunciation is more extensive,
such as “personal attitude” in Panama, or “penal records” in Costa
Rica bill. Also, case law is very voluminous in some countries.
For example the AIDS
Act (Argentina) —article 2 (d) y (e)— restricts the
publication of the names of those who are infected with HIV, the Ley
de Expresión y Difusión del Pensamiento (Dominican
Republic) “Article 41. There is to be a total ban on
textually publishing the acts of accusation of the Distric Attorney and
the other acts of criminal or correctional records that have been read in
public hearing” and other Press Acts restrict the publication of penal
accusations (for example Mexico
(art 9) which includes divorces and paternity suits).
del Pleno de la Suprema Corte de Justicia de la Nación 9/2003
(27th May, 2003), which establishes the bodies,
criteria and institutional procedures for transparency and access to the
public information of that Supreme Court:
Article 41. The Supreme Court final judgments constitute information of public nature and will be spread through any means, whether in writing or by electronic or any other means that technologic innovation make possible.
Article 42. In order to respect the parties' right to intimacy, personal data will be omitted when making judgments public, if these data constitute confidential information according to the terms defined by the Commission. And this without detriment for the recourses in front of this Supreme Court, and before pronouncing the judgment the parties will be able to oppose to the publication of those data, towards third parties, the result being those data being confidential.
In any case, twelve years after the agreement has come into force, under the provisions of article 13 and 15 of the law, files regarding matters of penal or family nature constitute confidential information, and therefore personal data about parties will be omitted when making the proceedings public.
In other matters within this Supreme Court competence, which are not of criminal nor family nature, the right of the parties to oppose to the publication of their personal data should be indicated to them in the first decision which is pronounced, explaining them that the absence of opposition would mean that they have given permission to publish the judgment without omitting the personal data.
These restrictions to the dissemination of judgments do not apply to those persons who are legally authorized to request copy of them.
The Declaration of
principles on freedom of expression approved by the Inter-American
Commission on Human Rights uses the concept of "voluntary public
persons": "10. Privacy laws should not inhibit or
restrict investigation and dissemination information of public interest.
The protection of a person’s reputation should only be guaranteed
through civil sanctions in those cases in which the person offended is a
public official, a public person or a private person who has voluntarily
become involved in matters of public interest. In addition, in these
cases, it must be proven that in disseminating the news, the social
communicator had the specific intent to inflict harm, was fully aware that
false news was disseminated, or acted with gross negligence in efforts to
determine the truth or falsity of such news."
This rule corresponds almost point for point with Article 8.5 of the Directive
95/46/CE of the European Parliament and the European
Council and is consistent with the vast
majority of national laws on
judicial registers and with case law.
'Edicts' could also be considered (for example in edicts wherein parents
are called upon to authorize their children to travel abroad,
personal data about the children and the parents are included in
such edicts, which are also available and easily accessible in the
newspaper Web sites).
 In cases in which legal entities are involved, efforts to avoid disseminating information about industrial property or trade secrets should be made. As for the modus operandi, the standard refers to comments in relation to crimes that require a certain sophistication (i.e. kidnapping or embezzlement).
research suported by
International Development Research Centre ( IDRC ), Canada