Data Protection and Press Freedom in the panamanian framework

In June 2022, the Authority for Transparency and Access to Information (ANTAI) sanctioned the digital media  La Verdad Panamá for publishing a marriage certificate without the consent of one of the contracting parties.

This has been the most controversial sanction filed by the authority on data protection in Panama, which provoked the reaction of unions of journalists and communicators throughout the Republic.

The resolution was appealed by La Verdad Panama is still to be resolved in the second instance; while ANTAI pointed out that Law 81 of 2019 was violated by not requesting authorization from the data owner before publishing the journalistic note, which contained their data legible in the marriage certificate.

Law 81 on the Data Protection in Panama seeks to protect the fundamental right to Privacy, without undermining the free exercise of other rights inherent to the individual such as access to information, freedom of expression, and, in the case of media, freedom of the press, since both must coexist harmoniously.

However, the law is not clear in the exceptions that it establishes to its application regarding the exercise of journalism. In article 3, it states that those treatments that are expressly regulated by special laws or by the regulations that develop them are excepted from the scope of the Law, which is not the case of journalistic activity, which to date does not have a unified legal framework that regulates it, and that, by the way, a union of journalists in the country has already been working on a proposal since November 2022.

On the other hand, article 8 states that authorization is not required for the processing of personal data in cases in which they come from or are collected from sources in the public domain or accessible in public media, and Decree 285 of 2022 - which regulates the Law 81 of 2019- in its article 20, numeral 2, states that only the media may be considered sources of public access. But in the absence of a regulation that regulates them, what can we define as a means of communication and what not?

The National Association of Journalists , through the citizen participation procedure, a legislative initiative for the modification of certain articles of the current law, among which the addition of a clear and express exception of the exercise of journalism, in light of this Law. Currently, the legislative initiative is before the Government and Constitutional Affairs Commission of the National Assembly of Panama, under the numbering of Draft Law 159 of January 4, 2023.

Without knowing if the modification of the Law will materialize or not, or if ANTAI will issue any guide or additional clarification to said Law -which is what is appropriate in our opinion- we recommend to journalists a series of good practices for the treatment of personal data in the exercise of journalistic work.

Among these recommendations is that of anonymizing personal data, this means making it public, and avoiding the identification of the person who the data is. Another recommendation is to be open and transparent in the collection of said data and to inform the affected person as long as it does not harm the journalistic investigation. On the other hand, carefully weigh the public interest of the data, since health records, family ties, or a person's sexual behavior, for example, often only serve to feed the morbidity in the publications instead of contributing something really necessary for understanding the context of the complaint.

In addition to that, the media and journalists must respect the rights of users regarding their data, access, rectification, cancellation, opposition, and portability, as well as basic principles such as confidentiality, among others listed by the Law, which must be complied with on time and with sufficient publicity to amend, to the greatest extent possible, the error made with the data in question.

In the case of the digital newspaper La Verdad Panamá, we consider that ANTAI did not adequately support the resolution, since the published information –in this case, the name and ID was included in a marriage certificate– which is a public document. However, the fact that a document is public does not mean that it is of public access or domain, as is the case with marriage certificates, that we must prove to be one of the contracting parties to request them. Even so, the outlet did not have the authorization of both parties to publish all the personal data contained in the marriage certificate, in addition to the fact that the public interest of the marriage certificate was not properly justified either. Therefore, it is extremely important to determine the public interest in the publication of the data if the consent of the parties or one of the parties is not obtained; or that the data be separated from the traceability of the individual to avoid compromising her privacy.

In any case, the most important thing is that the journalist can support the use and publication of any data based on the public interest and good practices for the collection, use, and conservation of information.

With this, we do not deny the possibility that any State has of misusing or misinterpreting this Law to regress the advances in legal matters of transparency in the management and use of public funds, for which we ponder the interest of journalistic unions in training in Law 81 and their interest in better adapting it to the needs of their work.

Article provided by INPLP member: Lia Hernández Pérez (Legal IT Abogad@s, Panama)

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Dr. Tobias Höllwarth (Managing Director INPLP)