Private life v freedom of press: a look at Ukrainian data protection law
In 2010, Ukraine adopted its first data protection law, which, as some suggested, imposed disproportionate limitations on the freedom of expression. In late 2012, amendments followed – will they help resolve the issue?
In 2010, Ukraine adopted its first data protection law. Largely similar in concepts and principles to the Directive 95/46/EC on the protection of personal data, the law was an initial move towards a comprehensive data protection regime in Ukraine. Good as this step may be, the initial version of the law, dated 1 June 2010, was drafted rather incoherently and was criticized, inter alia, for the limitations it may impose on the freedom of expression.In this post, I will specifically address a possible effect of the law on the freedom of press.
Where professional journalistic activity is concerned, the problem with the initial version of the law would appear not so much in the restrictions it directly imposed on press freedom, but rather in its inconsistent drafting. Firstly, the initial version of the law did not clearly set out its scope. Art. 1 stated that the law was aimed at 'regulating relationships relating to the protection of personal data during its processing'. Art. 5, however, provided that ' the objects of protection are personal data, processed in databases.' One may wonder – was the law meant to apply to all personal data, or only the ones processed in a database setting? In the latter case, the scope of the law would be rather restrictive, as its Art. 2 defined a database as an ' […]arranged collection of personal data in an electronic and/or filing form'. In the former case, the law would have provided only a limited exception to the work of the press, as its Art.1 excluded from its scope, inter alia, journalistic activity aimed at 'creation of databases including personal data and the processing of personal data in such databases […]'.
The above would mean that, unless a journalist processes data in a database setting (and one may wonder in just how many cases that would happen), the law's restrictions on the processing of personal data would apply. One of such restrictions (Art. 14(2)) related to the dissemination of personal data - the latter was allowed, unless data subject consented, only 'if provided by law and in the interests of national security, economic well-being and human rights'. Art. 29 (1) of Law on Information does allow the dissemination of information, if it is in the public interest, while the processing of personal data in the interest of free expression would fall within the aim of the human rights protection for the purposes of Art. 14(2) of the data protection law. This given, it would not appear that the initial version of the law imposed disproportionate restrictions on professional journalistic activity – rather, it was drafted so inconsistently, that it was not clear precisely in what circumstances it applied.
The revised version of the data protection law, dated 20 December 2012, clarified its aim as 'regulating legal relationships, connected with the protection and processing of personal data' and removed references to processing in databases both from the description of situations falling outside its scope and the provision on the objects of protection – a welcome development, removing the above inconsistency. However, this version further conditioned the non-applicability of the law to journalists upon them striking 'a fair balance between the right to respect for private life and the freedom of expression'. Thus, while at the first sight it may appear that, where professional journalistic activity is concerned, the newest version of the data protection law of Ukraine provides more clarity as to its scope, it in fact gives with the one hand, while taking with the other, conditioning the non-applicability of the law upon the 'balanced' press behaviour. It would be interesting to see the international reaction to this amendment - and something tells me that this may not be the final version of this law.