Abstract

The paper examines the issues and challenges in the recognition of informational self-determination in a new Constitution, based on a review of primary and secondary sources on personal data protection in Chile. The right to protection of personal data was enshrined in 2018 in the Constitution. However, there is a judicial practice that ignores the central features of the right. In addition, our legal system structures a deficient data protection ecosystem. This paper examines case law following the 2018 constitutional reform to provide input into the constituent discussion on the recognition of informational self-determination in a new Constitution. Based on this, issues concerning the content of the right and its entitlement, on the one hand, and of the jurisdictional and non-jurisdictional guarantee of the right, on the other, are explained. In this sense, the deficient reception of the fundamental right to the protection of personal data in the Chilean Constitution, together with a precarious and obsolete legislation, contribute to its ignorance and lack of protection. The text concludes with proposals to be considered in the drafting of a norm that should recognize right to the protection of personal data in a new Constitution, so as to prevent or to avoid the issues studied.