The institutionality of the “public faith” is fundamental for any democratic State, since, together with adequate access to the justice system, it is the guarantee that people have for the protection of their rights against possible violations that may be exercised by other individuals and the State itself.
Although it seems like an academic discussion, daily acts of great importance to the population such as the sale of a property, the registration of an effective possession, the transfer of a vehicle, the authorization of children and adolescents to leave the country, or the authentication of their identity, are permanent manifestations of their transcendence.
Public faith is not an exclusive attribution of notaries, conservators and judicial archivists. On the contrary, officers of the Civil Registry, inspectors of the Directorate of Labor, consuls; judicial receivers, clerks of courts and other official institutes also hold it. Moreover, currently systems, which do not require a natural person or “minister of faith”, such as the electronic signature of documents or validation by QR codes precisely make “faith” of the content of a certain document such as the “vaccination status” in the mobility pass or the professional title issued by a university. However, they do not have exhaustive regulations that clearly establish the limits respecting the delivery and subsequent use of the personal data they contain; many times they are linked to adhesion contracts for the treatment of the same and, even more, there is no type of education and / or information campaign that warns of the risks that the indiscriminate treatment of your personal information may entail.
In this way, the regulation of public faith must be seen in a holistic and systematic way, always ensuring the protection of legal traffic and taking into account the new realities that the advance of technology has driven in recent years and that presents new challenges. A very relevant one today is the fate of the repositories with the information of the population and the protection of their personal data.
In this sense, it is worrying that the bill presented by the government of former President Piñera did not have the protection of public faith as its central axis and that, on the contrary, it incorporated clear risk factors such as the “fedatarios”, new ministers of faith of an eminently private nature and lacking in regulation. In the same way, it intends to introduce digital data repositories in charge of the Civil Registry, which, by adding all the crossing of information of people, will become the “main course” to which large technology companies will want to access, as has been demonstrated with the public tenders that this service has made in recent years. And this scenario is possible today, if we add the very poor legal protection of the personal data of Chileans.
Even more worrying is what happened with the recent constitutional initiative presented by Convencionales de EVOPOLI, who, taking a total turn, similar to the proposal declared by the former Minister of Justice and Human Rights, Hernán Larraín, have presented a motion that, on paper, gives the State the realization of the certification processes, registration, archiving, custody and storage of the data established by law, through a “service”. This proposal is clearly a setback, since the State lacks the experience, expertise and resources to fully install a device of this magnitude overnight; the initiative does not take care of a possible transition of the system; even less does it consider that the proposed public registries will be supported on platforms that will obviously be tendered to private companies and, even worse, puts at risk the continuity and integrity of the currently existing registries, which could generate a crisis of structural confidence in the system, opening the space for the contracting of private insurance whose costs would be borne by the people.
For the foregoing, the protection of public faith and supervigilance in the formation of documents that have probative value or the character of authentic is a duty of the State, which must guarantee access, hopefully free, of the population to a system that gives guarantees of reliability, integrity and continuity over time. For this reason, any institutionality that is proposed in this regard must start from the basis of independence.
And there is successful comparative experience to review, which addresses the issue in a general way, such as the Superior Council of the Notary, in France, the General Directorate of Legal Security and Spanish Public Faith and the Superintendency of Notaries and Registry of Colombia, institutions that, guaranteeing political dispensation, exercise technical, financial and legal supervigilance of the processes linked to the public faith, as well as the activities of public and private institutions that carry out registrations, files and certifications.
Finally, it is necessary that any institutionality proposed in the future establishes the duty of the State to ensure the protection of the personal data of citizens that relate to public and private institutions that carry out records, archives and certifications; key issue addressed by advances in information technologies and the protection of fifth-generation human rights.
The content expressed in this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.