All questions

Data protection

i Requirements for registration

There is no data protection agency or similar body in Venezuela. In fact, there is scarce regulation on data privacy in the country.

Venezuelan law is unclear as to what constitutes private life or privacy. There is the right to private life and privacy stated in the Constitution, which affords every person the right to protect his or her own private life from others.

The Constitution protects personal information through habeas data in the following ways: every person has the right to access information and data on personal matters or those regarding personal goods, located on public or private registries, notwithstanding the exceptions set forth by law; every person has the right to be informed of the purpose for data collection and use; and every person has the right to request the competent courts to update, rectify or destroy the data, if they are erroneous or could affect in an illegitimate manner the person's rights.

A decision of 14 March 2001 of the Constitutional Chamber of the STJ stated that the guarantee of habeas data established in the Constitution is not applicable to employment files; unreliable information obtained from another person; or notes in diaries, or domestic or commercial documents. However, some local labour commentators disagree with this statement.

Although it is advisable, it is not legally required to obtain consent from employees to collect and share their data in Venezuela, unless such data relates to the worker's medical records. The Law on Prevention, Conditions, and Health and Safety at the Workplace establishes the employer's obligation to keep employees' health information confidential, and restricted to medical personnel and the corresponding health authorities, except when employees give their authorisation. In fact, it establishes serious sanctions for breach of confidentiality or privacy of the employees' health information, in the form of a fine of between 76 and 100 tax units, or shutdown of the entity for up to 48 hours. Therefore, data or information regarding an employee's medical records should not be shared with third parties unless the employee gives consent.

ii Cross-border data transfers

Owing to the fact that there is scarce regulation on data protection in Venezuela, in principle and except for cases where the workers' medical records are involved, employers do not have to request the workers' consent to transfer their data or register the transfer with a data protection authority. In fact, there is no data protection agency in Venezuela.

Based on constitutional principles, however, it is advisable to obtain the workers' consent to transfer their data.

iii Sensitive data

Based on the opinion of local commentators, it is understood that a third party violates the right to privacy when it gains unauthorised access to information related to a person's private life, which includes a person's financial situation, correspondence, customs, way of life or personal mishaps.

Venezuelan legislation considers workers' medical information sensitive and, therefore, it establishes the employers' obligation to keep this information confidential (see subsection i, above).

Moreover, the Law on Prevention, Conditions, and Health and Safety at the Workplace establishes the employer's obligation to take all appropriate measures to guarantee the privacy of the employees' correspondence and communications, and provide free access to all data and information referring to them. We consider that this obligation is related to the employees' health information, pursuant to the purpose of the Law, since it regulates matters concerning the conditions of health, safety and well-being in the workplace, even though the wording is very generic.

iv Background checks

It is not legally possible to investigate the criminal background of a candidate for employment or a current employee. There are provisions that protect employees and candidates from this kind of investigation. The Labour Law expressly provides that nobody can be subject to discrimination with regard to the right to work based on a criminal background. Additionally, there is an implicit prohibition to pursue investigation into the criminal background of employees, as the Law on the Registration of Criminal Records establishes that it is only possible to issue simple copies or certified copies of the registration of a criminal background to public authorities, in order to collaborate with a criminal procedure, for reasons of security and social interest, in the cases established by law.

Although there is no specific prohibition against conducting credit checks on potential employees or current employees, the Credit Card Law prohibits financial institutions from disclosing credit or debit card holders' personal financial information to any company or institution, unless such persons authorise them to do so. This authorisation is revocable.

There is no specific prohibition against verifying educational degrees or conducting background checks by calling previous employers. Further, there is no obligation to inform a candidate of the reason for not hiring him or her, which reduces the risk of being accused of discrimination.