Current Mexican legislation does not regulate the proper use and does not protect the right to privacy of personal data contained in databases on the internet, with regulatory effectiveness, nor with state force or with the probability associated with judicial decisions., since from the point of view of legal realism it is not formed by statements with ideal content about what is mandatory, but by the rules actually observed by society only.
Abstract: The current Mexican legislation does not regulate the proper use and also protects the right of privacy of personal data contained in databases on the Internet, with the effective legislation, nor the strength of the state or the probability associated with judicial decisions, since from the standpoint of legal realism is not formed by ideal containing statements about what is required, but the rules actually observed by the society only.
introduction
The internet is a valuable tool in the communication process of the globalized world, because it allows interaction between the inhabitants of countries around the world; However, the improper use of all the information contained in this means of communication can be risky and reach criminal dimensions, if the governments of the nations do not establish normative criteria for the regulation of its use, mainly with regard to personal data. that are registered in internet databases.
In twelve countries of the European Union the use of the information contained in the internet is legally regulated, which avoids risks to the physical and patrimonial integrity of its inhabitants; On the contrary, in the American continent, only five countries have regulations regarding the use of such information.
Mexico has a significant lag in terms of regulation of the right to protection of the privacy of personal data contained on the internet and therefore its population is vulnerable to cybercrimes, which threaten the personal and property security of its inhabitants and the legal vacuum in makes them unpunished. Situation that is contrary to the natural right of people in terms of the guarantee of privacy and intimacy that the State must safeguard.
Therefore, it is necessary for our country to carry out a comparative study of its legislation in other advanced countries in this area to standardize its regulations with the appropriate adjustments according to its social context.
II. Theoretical framework
In legal science, the right to information is precisely one of the relatively recent areas, which “is born the need to regulate and organize the exercise of a natural right of man, recognized with these characteristics in the fundamental laws of the various countries modeled on the legal-political sphere in the manner of the rule of law ”. It is, in any case, a branch in formation of the science of law in search of its autonomy with respect to the classical branches of legal science, which could be defined as the branch of public law that has as its object the study of norms laws that regulate the scope and limits of the exercise of freedom of expression and information through any medium.
In the same sense, Adriano De Cupis affirms that "the human individual is born already endowed with that good that consists in being removed from publicity, closed and guarded in the reserve itself." Indeed, the right to privacy contains some peculiarities that it is convenient to point out:
a) It is an essential right of the individual, inherent to the person regardless of the particular legal system or normative content under which it is protected by positive law.
b) It is a non-pecuniary right, which cannot be traded or exchanged like credit rights, given that it is part of the individual's personality, which is why it is non-transferable and inalienable, and
c) It is an imprescriptible and unattachable right, the right to privacy is no longer just a doctrinal matter to become a content of positive law by virtue of the scientific and technological development that the modern world has experienced with the massive use of information technology, that allows almost limited access to personal information by public or private institutions.
The triangulation of information by computerized procedures can generate a fairly complete profile on the personal life of individuals, thus violating their right to privacy, and thereby nullifying the traditional theory of spheres, consisting of the existence of three degrees of privacy: private, intimacy and secrecy.
Now, it is worth mentioning that the basic subject of study that concerns us is the Internet and its legal regulation, without forgetting that this medium does not respect geographical limits and does not recognize borders or state jurisdictions, which brings as uncertainty regarding the law applicable to acts that lack a precise physical location.
It is important to urge to protect rights such as those of intellectual property in cyberspace, but the restriction of rights and public control of illicit acts in the virtual world is difficult, but it cannot lead to excessive and unjustified excesses or censorship practices.
"Cybercrime" is criminal or abusive activity related to computers and communication networks, either because the computer is used as a crime tool or because the computer system or its data is the target of the crime.
The Safe Harbor Agreement between the United States and the European Union that establishes clear rules so that American companies in Europe can transmit personal data to their headquarters in the United States, while complying with the European Directive on the protection of personal data, it is the most concrete international example of self-regulation at the supranational level.
The philosophy of the theories of law that support the regulation of the use of personal data contained in databases on the Internet, are the following:
• Empiricism confirms the facts of social reality or of specific cases to adapt them to the legal framework.
• Natural law establishes privacy and intimacy as inherent rights of people, which must be respected by the State.
• Positive law considers the comparative and real study of the specific case with the laws of other countries.
III. Development
Globalization is a phenomenon of world economic development that implies that countries are economically and politically interconnected with each other, and transfers it to their inhabitants who seek the greatest possible interaction with their community and that of other countries, then then the exchange of data plays a fundamental paper.
A person who seeks to be accepted socially cannot be isolated from the rest of his community, in this area the advancement of technology and the creation of huge public and private data banks has caused a stranger to stop being so in a matter of minutes, which implies the benefit of economic, political and social interrelation.
Currently, computing is essential for the development of social activity because it provides personal information to third parties, which is processed in order to use it efficiently, representing an important advance the use of computers to process the enormous accumulation of information.
This phenomenon implies the evolution of the right to continue adapting to the process of the globalized world, since the protection of personal data has been recognized and regulated in most cases by member countries of the European Union such as France, Germany, Holland, Ireland, Luxembourg, Finland, Sweden, Austria, Spain, Portugal, Switzerland and Norway. Likewise, in the American continent it is worth mentioning countries such as Argentina, Chile, Paraguay, the United States and Canada.
Our country lags behind in this matter of law, because most of the personal databases contained on the internet are available for consultation by anyone who accesses an internet page and this represents a risk due to improper use that can be given to the information contained in these databases, and consequently a series of cybercrimes are caused that undermine the protection of the right to privacy of all people, since our current legislation is imprecise to regulate the proper use and punish criminal conduct derived from the improper use of that information.
Finally, we have exceptional cases in the matter of "Protection of Personal Data", such as our Mexico, which is totally lagging behind.
Every person has the right to an effective remedy before the courts of the nation, which protects him against acts that violate his fundamental rights recognized by our Magna Carta.
The protection of personal data and confidentiality of information on the Internet are issues of increasing importance in society and that require great attention every day from the world Internet community, from service providers, managers or administrators. of websites, their owners, as well as the millions of users around the world who must consider a code of ethics in the handling of confidential information that is accessed, considering existing legal systems.
The importance of giving this protection of personal data and its confidentiality, to its holders of said information, leads to take care of it and the proper use of it, guaranteeing the protection of people, contemplated within the constitutional guarantees in our country. In this sense, achieving a data protection system that sanctions the use of data by third parties, without the explicit authorization of the owner, may result in the alteration by means of electronic equipment, personal, family, social or professional damage to the individual whose privacy was violated.
IV. conclusion
The objective is to guarantee the owner of the data that third parties, both from the public and private sectors, use the personal information of their clients, affiliates, law-environments or proxies with the confidentiality that the owner of the information needs, in such a way that the user does not lose control of them and at all times know who has their data, what they use it for or who they transfer or communicate it to.
Data protection has a double impact on companies that use the Internet as a means of transmitting, storing and processing information, on the one hand, it requires obligations to those who have access and knowledge of personal data, and on the other, it confers rights to the owner. of the data that can be exercised before those who handle that information within the legally established limits, in order to control how, who and for what their data is processed.
Respecting the right to physical and moral integrity of the person, together with the protection of their privacy, personal, family and honor.
V. Bibliography
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• Cantú María Elena (2005). Media and power. The role of radio and television in Mexican democracy. Mexico, State of Mexico. Norma Editorial Group.
• Del Castillo del Valle Alberto (1995). The freedom to express ideas in Mexico. México, DF Editorial Duero SA de CV
• Herrendorf Daniel E. (1992). Universal classics of human rights. México, DF National Human Rights Commission.
• Jijena Leiva Renato, Andrés Palazzi Pablo, Téllez Valdés Julio (2003). The law and the information society: the importance of the Internet in today's world. México, DF Editorial group Miguel Ángel Porrúa.
• Pierini Alicia, Lorences Valentín (1999). Right of access to information. Buenos Aires, Argentina. Editorial Universidad SRL
• R. Brizzio Claudia (2000). Informatics in the new law. Buenos Aires, Argentina. ABELEDO-PERROT SAE and I.
• Ríos Estavillo Juan José (1997). Law and computing in Mexico. Legal informatics and computer law. México, DF National Autonomous University of Mexico.
• Villanueva Ernesto (1998). Legal regime of freedom of expression and information in Mexico. México, DF National Autonomous University of Mexico.
• Villanueva Villanueva Ernesto (2000). Mexican information law. Mexico, DF Oxford.
• http://www.export.gov/safeharbor/ The US-EU & Swiss Safe Harbor Frameworks, 1998, Export Gov.
