Personal Data vs. Public Interest

Olivia Pirtac,
 expert in media law 
 

The end of May surprised the public with two events that drew attention to personal data protection: suddenly, two institutions that provide data to the public were required by the National Center for Personal Data Protection (NCPDP) to no longer provide these data because they contained personal data. Namely, this refers to the State Registration Chamber (SRC), which used to provide data about the founders of companies, for a fee, and the Central Election Commission (CEC), which on May 30, 2015 announced it suspended the operation of its websites after the CEC had been made subject to  an unannounced control by the NCPDP which had taken action on the basis of an alleged fact of illegal processing of personal data.

In the case of SRC, the NCPDP took action after the Government's initiative to provide free access to information about the founders of the companies (first name and last name), to be loaded on government data portal. At first there was just a negative opinion from the NCPDP, which was concerned, inter alia, about deletion and correction of data on the internet, when such data will no longer be reliable and will refer to a past situation. Until now the same data were provided to the public for a fee, not free of charge. The situation developed fulminantly: the NCPDP adopted a decision penalizing the SRC forcing it not to disclose data. The public data will no longer be available even for money.

These events were like a cold shower in the context of the fact that, finally, the public became aware of the issue of how the Law No. 133 of 08.07.2011 on the protection of personal data was written and interpreted. The idea is that the NCPDP specialists only know that all data must be protected and disclosed with the consent of the person concerned. For them there is no concept of public interest or prioritization of information disclosure against the interest of the person to keep it closed. The press reacted immediately with a Statement , and the NCPDP beat a retreat, beginning to justify and state that journalists’ access would not be restricted.

The actions of the NCPDP found no support from other public authorities, which expressed their disapproval, in one form or another. In particular, the analysis of European law and standards was performed by the Ministry of Justice which, in its conclusion stated that the normative legal framework did not contain any impediment for publishing the full name of the founders of Moldovan companies – natural persons. In terms of European standards, the Ministry of Justice invokes Chapter 2 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009.

The question we raise is what type of personal data can and should be made public. And here the answer should be simple: everything which is of a real public interest (i.e. not a mere curiosity) should be public. If there is a conflict with private interests, both interests should be weighed and priority should be given to the one with the greatest weight in terms of impact and needs of the society. This has been applied in domestic law of the Republic of Moldova since 2000, when the Law on Access to Information was passed, and since 2010, when the Law on freedom of expression was passed. Both laws address the issue of personal information and regulate the issue based on what is the reasonable and common sense public interest.

It is logical and reasonable that not all information about the person is considered "personal" in light of the rules restricting its use: e.g. data from the ID card – full name, place of birth, father’s name and the IDNP. Living in the society without these data is impossible, so it is not an attribute of the person, but of the society. The rest of the information reported to them will be confidential depending on the content, but not absolutely. Thus, the general law should establish some basic principles of confidentiality and publicity. The particular issues, i.e. of the content, should be regulated by special laws and not by general law. Accordingly, electoral matters should be regulated by the Election Code, those related to healthcare, education, industry – by specialized laws etc. Or, when these special laws are approved, public importance or the delicacy of the content of information should be weighed specifically, taking into account the general principles of law, and this assessment should be closer to the idea of ​​public interest, as it is made in the light of a specific situation.

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The article was published within the Advocacy Campaigns Aimed at Improving Transparency of Media Ownership, Access to Information and promotion of EU values  and integration project, implemented by the IJC, which is, in its turn, part of the Moldova Partnerships for Sustainable Civil Society project, implemented by FHI 360.
 
This article is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The content are the responsibility of author and do not necessarily reflect the views of USAID or the United States Government.