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Parliament Passed the Law on the Protection of the Personal Data

29.12.2011

The Law Which Protects and Makes Personal Data Public Simultaneously

Oto Dalakishvili, Davit Kanchashvili, netgazeti

On December 28, the Parliament of Georgia passed the draft-law on the protection of personal data on its special session with the third hearing and 88 MPs voted for it.

Nobody made notes concerning the issue at the third hearing.

Article 6 of the draft-law regulates processing (including release and publishing) of the data of particular importance by public and private agencies.

According to the Article 2 –“b” of the draft law, the personal data belongs to particular category if it is connected with racial or ethnic belonging of a person, with his/her political views, religious or philosophic faith, with the membership of professional organization, health conditions, sexual life or criminal record. In addition to that, the person can be identified according to his/her characteristic features stored as a biometrical data.

Nobody expected the parliament to adopt the law because it was initiated a year ago and was passed with the first hearing.

Since the conclusion was released on the draft-law the GYLA did not have information whether the parliament was going to enact it or not. The agenda of special sessions did not list the discussion of this bill either.

The draft law was passed on December 27 with the second hearing and on December 28 it was adopted with the third hearing.

The recommendations of the Georgian Young Lawyers’ Association are not envisaged in the law.

Nothing Personal

The lawyers have several questions regarding the draft-law on the Protection of the Personal Data – will the personal life of a person be protected in Georgia and what are the guarantees that personal data will not become reason for his/her discrimination on various grounds?

The draft-law, whose authors are the members of the parliamentary majority – Pavle Kublashvili, Lasha Tordia and Kakhaber Anjaparidze, obliges public and private agencies to collect, process and share personal data about the personnel with the inspector; the new draft-law also envisages establishment of the inspector’s office.

“An employer might refuse to hire a person due to his/her sexual orientation, health problem or political view and moreover, the person cannot complain about it because the refusal cannot be made public,” said Tamar Kordzaia, lawyer of the GYLA.

The personal data in the new draft-law, relating with racial or ethnic belonging, political opinion, religious or philosophic faith, membership of a professional organization, health conditions, sexual life or criminal record, are defined as a particular category.

The article 6 of the draft-law prohibits processing of the data belonging to the particular category though envisage some exceptions: if a person, whose personal data is to be processed, made a written notification or became a public figure, or the data is processed in accordance “to the law due to protection of significant public interest.”

MP Lasha Tordia clarified the significant public interest as follows: “A kindergarten or any medical center shall have information about a person whether she/he has AID or a kindergarten shall have information about sexual orientation of the person.”

He added that public interest protects the rights of general society and it also envisages protection of rights of each citizen.

“In case of particularly sensitive topics, the information will be protected. Those data shall not be used for concrete purposes and nobody must use them unconscientiously,” said Lasha Tordia.

Lawyer Tamar Kordzaia thinks this concrete exception might become a reason for an employer to discriminate an employee due to his/her different personal data. The draft law clarifies the “process of personal data” as collection-process and release of the information. After the information is processed and is stored in the inspector’s personal data registry, the information becomes public and anybody can request the information.

“When the law estimates that data of particular category might be processed, the person can even release it. Unless the procedures of data release are separately regulated, there might be a risk to unclose personal information,” said Tamar Kordzaia.

The Constitution of Georgia and any international document on human rights aims to prevent discrimination. The GYLA’s lawyer Vakhushti Menabde speaks about the details from the draft law contradicting the Constitution. “If we consider the draft-law in comparison with the Constitution, the latter already regulates when the personal information can be released; if it deals with public safety or state security, etc. The Constitution already shortlists the general recordings, which are mentioned in the draft-law. However, there are several articles which have no justification and create problems. For example, the fifth article states data can be processed if it is necessary for the processer to implement his/her legal obligations.” According to the lawyer, the legal obligations can constitute many directions - part of what can comply with the constitution but another part can contradict it.

“Packet of amendments shall be enclosed to the new law to know which law, which public interest might require publicity of my religious faith,” said Tamar Kordzaia. Before the draft-law is passed and put in force, the Article 43 of the General Administrative Code regulates the protection of personal data. According to it, a public agency shall not collect, process, store or release the personal information relating with person’s religious, sexual, ethnic belongings, political or philosophic views.

According to the draft-law on the Protection of the Personal Data, violation of the principle about processing of personal information is punished with fine from 500 to 10 000 GEL or with administrative charge. Inspector’s institute for the protection of personal information is established for this purpose. The prime-minister will appoint the inspector; the Parliament, Public Defender and NGOs will participate in his/her selection. The inspector is authorized to control and prepare recommendations, as well as making direct notes and decisions. The inspector’s requirements are imperative for public agencies and private legal entities. The originated argument between the agencies and the inspector shall be discussed only by the court.

The legal and human rights committees of the Parliament of Georgia have already discussed the draft-law. The parliament will hear it in near future.

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