The Organic Law 3/2018, of December 5, 2018, on the Protection of Personal Data and guarantee of digital rights, introduced by the final provision 3.2 a new article in the Organic Law 5/1985, of June 19, 1985, on the General Electoral Regime, Article 58 bis (Use of technological means and personal data in electoral activities) which reads:
The collection of personal data relating to the political opinions of individuals carried out by political parties in the framework of their electoral activities shall be protected in the public interest only when adequate guarantees are provided.
Political parties, coalitions and electoral groups may use personal data obtained from web pages and other sources of public access to carry out political activities during the electoral period.
The sending of electoral propaganda by electronic means or messaging systems and the contracting of electoral propaganda on social networks or equivalent media shall not be considered as commercial activity or communication.
The aforementioned publicity activities shall prominently identify their electoral nature.
The addressee shall be provided with a simple and free way to exercise the right of opposition.
This article and specifically its paragraph 1 has been highly criticized by the doctrine and by the media, which argue that this paragraph 1 is contrary to the fundamental rights contained in the Constitution.
The Pro-Human Rights Association of Spain (APDHE) requested the Ombudsman to file an appeal of unconstitutionality against this rule.
Finally, last Friday, March 15, the Official State Gazette published the announcement of the filing of the Appeal of unconstitutionality No. 1405-2019, promoted by the Ombudsman against Article 58 bis.1 of Organic Law 5/1985, of June 19, 1985, on the General Electoral Regime, incorporated into it by the third final provision, point two, of Organic Law 3/2018, of December 5, 2018, on the protection of personal data and guarantee of digital rights.