Draft law on data protection and freedom of information

The draft law – currently before the Parliament – on Data Protection and Freedom of Information will replace the independent Data Protection and Freedom of Information Commissioner with an administrative authority. This change will seriously diminish the level of privacy protection and weaken the right to access to information in Hungary.

Currently, the commissioner is elected by the Parliament for six years, the present commissioner is in office since 2009. Consequently, his term would have ended in 2015, four months after the next national elections. According to the proposal, the president of the republic will appoint the head of the authority in November 2011, who starts to function from January 2012. The candidate is named by the prime minister. The term lasts for nine years, and it’s renewable. As the new authority will not be the successor –in legal terms – of the commissioner, this process can be interpreted as the removal of the current commissioner.
 
  1. An administrative agency does not enjoy the same independent status as the commissioner, which is an ombudsman. Clearly, the authority will be reluctant to enforce FOI rules and confront with other governmental agencies. As a part of the executive and its dependence on the prime minister (the current president is a former member of the governing party and right hand man of the prime minister), the new authority is likely to become insignificant.
  2. The right to institute court proceedings, if the request of the data was refused, will not change. Nevertheless, it should be noted that courts only have the right to declassify information if the Commissioner initiates the procedure. If in the course of his proceedings the Data Protection Commissioner finds the classification of certain data – excepting those classified so under an international agreement – unjustified, he shall call on the person or organ by whom they were classified to change or terminate the classification. The classifier may, within 30 days, go to the Metropolitan Court of Justice to have it established that the demand has not been well-founded. As the only way for citizens to contest the classification is through the Commissioner, and there isn’t any direct and effective legal procedure to obtain classified information, the independent Commissioner plays a crucial role in balancing between national security and freedom if information. With an authority loyal to the executive, it will be even harder to fight for the right to know in the universe of classified information.
  3. The draft means serious setback regarding the current level of protection of privacy. The draft undermines the constitutional principle of informational self determination by allowing data processing even if the consent was withdrawn. The proposed text clearly favors the state surveillance and the data usage of the business sector at the expanse of the citizens and their constitutional protection.
  4. The removal of the commissioner before the end of his term breaches obligations under EU law. Article 28. (1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data requires the following: Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.

These authorities shall act with complete independence in exercising the functions entrusted to them.” The European Court of Justice ruled in the case C-518/07 (European Commission v. Federal Republic of Germany) that when carrying out their duties – i.e. ensure the fair balance between the fundamental right to the private life and the interest requiring free movement of data – the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct and indirect influence of the state, and not only the influence of the supervised bodies. The Court furthermore held that the mere risk that the scrutinizing authorities could exercise a political influence over the decision of the supervisory authorities, was enough to hinder the latter authorities independent performance of their tasks. In HCLU's reading, the removal by lawmaking is an unacceptable political influence. 

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