Call for a review of the Law on Personal Data Protection
Picture from http://gurt.org.ua/
Representatives of Ukrainian NGOs have addressed an appeal calling for a review of the Law on Personal Data Protection which has now been in force since the beginning of 2011. Their appeal is addressed to the Verkhovna Rada; the Parliamentary Committee on Education and Science; and the Council of Europe Office in Ukraine.
They state that the Personal Data Protection Act has demonstrated a number of problems including restriction of access to public information on grounds of confidentiality of personal data; excessive administrative demands on the processing of personal data (registration of databases); a restricted list of grounds for the warranted processing of such data.
They note that the problematical nature of some provisions of the Law and its failure to comply with European standards are pointed out in an assessment by Council of Europe experts dated 19 January 2012 and a.
These issues have been exacerbated by the entry into force on 1 July 2012 of amendments to legislation increasing liability for infringing procedure on processing personal data.
This makes amendments to the Law and its coordination with the Public Information Act vital. The authors of the appeal cite three bills presently before the Verkhovna Rada aimed at amendments to the Law and say that Draft Law No. 10472-1, submitted by the Cabinet of Ministers on 28 May 2012 could be passed in its first reading as long as it is then reworked before it is finally adopted.
They are therefore asking the addressees, including the Office of the Council of Europe which could carry out an analysis of the draft bills to consider their proposals set out in an appendix.
The letter is signed by a number of prominent figures including Iryna Bekeshkina, Director of the Democratic Initiatives Foundation; Arkady Bushchenko, Executive Director of the Ukrainian Helsinki Human Rights Union; Roman Holovenko from the Institute for Mass Information; Oleksy Khmara from TORO – Transparency International Ukraine; and Taras Shevchenko, Director of the Media Law Institute.
In their Suggestions for the Law on Amendments to the Personal Data Protection Act (No. 10472-1), they propose among other things:
- clearer wording stipulating that the Personal Data Protection Act does not cover processing of personal data carried out solely for journalist purposes;
- correcting the norm according to which all personal data is information on restricted access. This contradicts Article 32 of the Constitution which prohibits the retention, use and circulation of “confidential information about a person”. This makes it clear that not all information about a person is confidential. Information about people holding public office in public authorities or bodies of local self-government, etc is not confidential. The authors stress that the Law at present fails to comply with European Court of Human Rights case law which stresses that the right to privacy of public officials may be more limited than that of other members of the public.
They also point out that the present norms clash with the definition of confidential information in the Public Information Act.
- rejecting compulsory registration of personal databases which is not demanded by the Convention of the Council of Europe No. 108. EU Directors 95/46.
They note that the draft law does not ensure an institutionally independent authorized state body on personal data protection which they call one of the main failings of the current Personal Data Protection Act.
Bearing in mind present constitutional restrictions and Ukraine’s administrative system, they suggest that such a model for an independent authorized state body on personal data protection could be:
1) the creation of a state collegiate body with special status and procedure for its formation similar to national commissions carrying out state regulation in particular spheres;
2) vesting the Human Rights Ombudsperson with the relevant functions.
A summary of the letter and proposals found in full here