The article 58 bis of the Organic Law on the General Electoral Regime has caused unjustified alarm. Neither the law allows, to be outright unconstitutional, to create databases, ideological to send electoral propaganda custom nor protects the spam massive electoral. Quite the opposite: reinforces the privacy of the voters.
the intention of The legislator has been to enhance the protection of data in electoral activities. I will try to explain it:
1. The law plays Recital 56 of the European Regulation (RGPD), authorizing the parties to use data on electoral activities, “provided that they offer adequate guarantees”. Rule in effect, ignored until today, that allows you to interpret and “fill in” the RGPD.
Aware of the risk of maximalist interpretations which, the law emphasizes that these activities may be admissible “only” with adequate safeguards. The law does not explicit because the expected to the RGPD and the european case law prohibits them them. The first of them: to perform an “impact assessment” that a database is ideological, for shipments of electoral custom, never exceed for violation of article 9 of the RGPD and the right not to disclose ideology (article 16 EC and 10 CDFUE). If a party violates it risks fines of up to 20 million euros.
What the law allows? Only, as he said the Spanish Agency for Data Protection (AEPD), the 21 of November, “the press of the concerns of the citizens to give them answer in their ballot proposals” but without the custom id. What environmental policy, transport, education, scholarships, etc.? Nothing more.
2. The law says that the shipments automated election propaganda are not “commercial activity”. Are not subject to the Law of Electronic Commerce because they are not commercial profit —so says the AEPD from a decade ago. Nothing new. More legal security.
The above does not extend to spam massive voter because obtain without consent mobile phone or e-mail for shipping election is illegal and the AEPD it enacts. Nor is it imaginable the reception of mass wasaps election because he would have to apply for mobile and consent of the holder, risking fines in the millions.
3. The AEPD supports that the parties boast of “legitimate interest” to send electoral propaganda through emails obtained from sites “public and accessible” to the public (R/1467/2016) but the law has set forth additional safeguards: only in an election period, identifying the nature of elections and by providing a right of opposition, simple and free. More guarantees and legal security. Mass mailing of election propaganda nor would an impact assessment and would suffer substantial fines.
Artemi Rallo Lombarte is the reporter Data Protection Law and Digital Rights, professor of Constitutional Law and former director of the AEPD.