Religious affiliation as a special category of data. The case of baptism record in Spain.

Abstract

Abstract

The special protection given to religious data is based on the need to provide the subject´s explicit consent for its processing and transmission. This consent shall not be necessary when a denomination or religious association, foundation, etc., in the course of its legitimate activities and when that processing relates solely to the members or to the persons who have regular contact with it, carry out the processing. Also it must be done with the appropriate guarantees and personal data shall not be disclosed to a third person without the consents of the data subjects. The recently Spanish Supreme Court decisions do not always agree with the applicability of processing data regulation to certain religious records, specially when the Court try to value the application of personal data or filing system legal concept. This study aims to present an interpretation of the religious data special processing in the Spanish legal system, in order to determine its scope and to prove the adjustment of the Spanish Court recent decisions to national and international standards. We will focus our attention on the religious profile special protection, presenting the Supreme Court legal grounds to substantiate its decision, testing it with the national standards on the right to privacy and giving appropriate legal options for a secular state. The author asserts the applicability of “personal data” and ”record” legal concept to the baptismal books and the information available on it, analysing both, as well as the purpose of baptism and apostasy, the operating procedures of the parish record and, finally, telling the difference between collection or use of personal data and transmission or dissemination, both as a part of “processing of personal data” in legal terms but confused in the Supreme decisions. For that reason the author proposes the application of a dissociation measure to preserve the integrity of baptismal records and the personal right of data protection. Religious processing data system is a new issue with a few scientific analyses, so we will try to present more arguments to stimulate a debate.