Open letter to the National Supervisory Authority for Personal Data Processing


We are writing this open letter in the context of the public controversy created by the demand you sent to RISE Project in order to have them provide information on the Facebook posting of a journalistic work.

In our standing as human rights organizations, advocating both freedom of speech and freedom of the press, on one hand, and privacy, on the other, we would like to make some clarifications which we hope will prove useful in tackling similar situations in the future, especially when freedom of speech is concerned (we acknowledge that data protection and privacy is your area of expertise), clarifications that may help in understanding the string reaction of the European authorities. We also suggest that there’s an urgent need for the ANSPDCP to implement a system designed to handle requests regarding personal data processing for journalistic purposes.

1. Not just privacy is a fundamental right, freedom of speech is one as well.

Privacy, as well as freedom of speech enjoy the same level of protection, none being above the other. An authority cannot arbitrarily invoke restrictions on freedom of speech, more so when it is a situation involving a public interest topic, like in this case. In order to decide which of the two rights prevail in a given situation, they need to be weighted against each other, which is necessary in order to find the correct balance by taking into account the particularities of each case.

To reduce everything to just the 3 exceptions in Art. 7 of law 190/2018 is a simplistic approach, as long as it is clear that the purpose of the General Data Protection Regulation (GDPR) is not to restrict freedom of speech. At the same time, there are numerous conventions regarding human rights that Romania has signed (we would like to mention here only two of them - the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights) and that need to be taken into account when fundamental rights need to be reconciled. The European Court of Human Rights (ECtHR) has extensive jurisprudence on issues regarding the balance between the right to free speech and privacy, and this balancing test takes into account at least 6 extremely important factors that need to be assessed in each individual case. Thus, it should have been necessary that the ANSPDCP take into account – both during its internal debates and in its subsequent public communications – these aspects that concern proportionality and the reconciliation of the two fundamental rights.

2. Protection of journalistic sources is crucial for guaranteeing freedom of speech

The protection of journalistic sources is one of the fundamental requirements for guaranteeing freedom of the press. ECtHR jurisprudence consistently stresses that the attempt to force a journalist to uncover his sources is infringing on his right to receive and to disseminate information, so it infringes on his freedom of speech. The ECtHR considers that forcing journalists to uncover sources negatively impacts the free flow of information, thus negatively affecting democracy, and, as a result, it can be justified only in extraordinary cases.

Because of this, the reaction of journalists and of European institutions when they found out that ANSPSCP asked for the “source” of the information protected by RISE Project is normal and perfectly understandable. We consider that it is the role of ANSPDCP to take into account the reconciliation of rights, first and foremost in order to be able to explain why, in that case, the exceptions for journalism do not apply. Secondly, if ANSPDCP decides to go forward with it and that no exception applies, it needs to clearly state that the request for sources, in these cases, do not refer to journalistic sources but rather to establish if the data is collected straight from the data subject or from other sources (or from public sources), for a possible enforcement of articles 13 and 14 of GDPR.

We can only hope that, in fact, this is just a failure in communication, not an attempt to get access to journalistic sources.

3. Threats have no place in notices sent by public authorities

Your request to RISE Project indicates the fact that they are liable for a fine of 3000 RON per day, for each day they delay answering the request, 10 days being the term for receiving a reply. Moreover, you advised them that they are liable for an up to 20 million EUR for infringing on Art. 83 of the GDPR, underscoring in your text the reference to “denying access”.

This looks like a threat (although the text is in accordance with the stipulations of the GDPR), and the part mentioning “access” to documents raises the concerns explained above. Even more so given that no authority in Europe has given a fine of 20 million EUR. Actually, not even 1 million EUR. To our knowledge, not even as much as 100 000 EUR.

In conclusion, in regard to the 3 points presented above, we notice that the request sent to RISE Project left the impression of a hasty action, lacking a thorough analysis of the situation, which added to the public feeling that there may be political motivation behind it, generated by fraud related journalistic revelations, and that it was not just an objective and impartial investigation of the ANSPDCP.

We are mentioning this because both fundamental rights are just as important and we do not wish that the role of ANSPDCP to be resumed to that of a tool of political control and limiting speech necessary in a democratic society.

We consider that ANSPDCP urgently needs to implement a system to handle requests regarding the press. This system needs to be designed based on public consultation together with press and freedom of expression experts from Romania and the European Union. We are eagerly waiting for your proposals on this.


Signatories:

Asociația pentru Tehnologie și Internet - ApTI
ActiveWatch
Centrul pentru Inovare Publică
APADOR-CH
Centrul pentru Jurnalism Independent
Miliția Spirituală
Sindicatul Roman al Jurnaliștilor MediaSind
Centrul Român pentru Jurnalism de Investigație
Societatea Jurnaliștilor Galați
Funky Citizens
Fundatia pentru Dezvoltarea Societatii Civile
CeRe: Centrul de Resurse pentru participare publică
Asociația Kompatibil
FONSS- Federatia Organizatiilor Neguvernamentale pentru Servicii Sociale
Uniunea Jurnaliștilor Maghiari din România UJMR-MURE
Frontline Club București

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