The Spanish Constitutional Court has annulled the article which allowed the political parties to collect personal data relating to 'citizens' political opinions

The Plenum of the Spanish Constitutional Court upholds the appeal of unconstitutionality against the first section of article 58 bis of Spanish Electoral Law 5/1985, incorporated into the latter by the third final provision, section two, of the Spanish Data Protection Law 3/2018.

The article read as follows: "The collection of personal data relating to the political opinions of persons carried out by political parties in the framework of their electoral activities shall be in the public interest only when adequate safeguards are provided." This article enables the processing of personal data that would otherwise be prohibited by both European and national law, since it is data relating to special categories.

While the fundamental right to data protection may be restricted by law, the restriction must serve a general interest and must also guarantee the proportionality principle. The protection and establishment of adequate safeguards is not only required by European legislation but is also a constitutional requirement.

The restriction by law must guarantee certainty requirements which must govern in any interference in a fundamental right as well as precision of the assumptions of the limitation of the right; otherwise an uncertainty is generated regarding the cases to which such a restriction applies.

According to the Judgment, this provision has led to three violations of Article 18.4 of the Spanish Constitution in connection with its Article 53.1, that is, to the legal reservation and the essential content of the fundamental right to the protection of personal data. The following, among others, were the grounds on which the appeal was upheld:

-          It does not specify precisely what the essential public interest underlying legislative interference with the fundamental right is. This uncertainty implies that the regulation and limits setting in relation to fundamental rights is transferred to political parties.

-          It does not limit the processing by means of a detailed regulation of the restrictions to the fundamental right. It may only be carried out within the "framework of its electoral activities" is a condition that hardly contributes to constraining the use of the entitlement conferred. The article does not specify the scope and content of the data processing that it authorizes, so it is insufficient to determine whether or not the operations that the political parties may carry out will be "the foreseeable fruit of the reasonable application of the decision made by the legislator".

-          The Constitutional Court confirms that adequate guarantees have not been established to protect the fundamental right, and that in its case, "the guarantees should be incorporated into the legal regulation of the processing itself, either directly or by express and perfectly delimited reference to external sources that possess the appropriate normative status". The article declared null and void did not require any guarantees, which is why the Circular 1/2019 of the Spanish Data Protection Authority was approved, which determined that the Authority would be the one to identify them.

In addition, the need for adequate safeguards is greater if the processing affects special categories of data because of their special impact on dignity, freedom and the free development of the personality.

The declaration of unconstitutionality will not prevent political profiling and where attention should be paid is to create appropriate technological and legal tools to ensure that there is less interference in the privacy of citizens.