On the 23rd of January 2019, the Bulgarian Parliament adopted amendments to the Law for Protection of Personal Data in its effort to comply with the EU General Data Protection Regulation (GDPR). However, some particular amendments raise serious concerns among journalists, artists, writers, bloggers and scientists. Which the Association of European Journalists-Bulgaria addressed back in May, when the Bulgarian Data Protection Committee and the Ministry of Interior first presented the new bill.
According to art. 85 of GDPR, Member States shall by law reconcile the right to protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including data processing for journalistic, academic or artistic purposes and for the purposes of literary expression.
The Bulgarian effort to follow art. 85 is made by guaranteeing the right to use personal data for journalistic purposes and the purposes of academic, artistic or literary expression. However, an additional provision lists 10 criteria, which everyone who exercises this right and uses personal data for those purposes should comply with, according to the amendment “when they are applicable”. However, the criteria are so broad, they open the door for censorship by the power, vested with the new amendments in the Bulgarian Data Protection Committee. The Committee will have the authority to use the criteria “to judge the balance between the freedom of speech and the right to personal data protection, as applicable.”
The criteria include:
the nature of the data;
the impact that public disclosure will have on a subject’s personal and private life and on their good name;
the circumstance under which the personal data was acquired;
the nature of the statement through which the administrator will publish the personal data;
the importance of the disclosure for the public interest;
weather the subject contributed in any way through their actions for the awareness of the administrator of these data;
whether the subject is a public figure or not;
the goal, content, format and repercussions of the publication;
the compliance with the statement made for the journalistic and other purposes with other fundamental civil rights;
other circumstances relevant to the particular case;
Instead of guaranteeing the freedom of expression by adopting an exception of the new regulation of the protection of personal data for journalists, writers, artists and scientists, the Bulgarian legislator adopts amendments, which limit the use of personal data for journalistic and other purposes. If the Bulgarian Data Protection Committee decides these criteria are not met, it can open administrative proceedings and impose a fine, which can be up to 5000 lv (2500 euro).
Although those criteria were taken from the practice of the European Court of Human Rights, listing all of them in a new law threatens the right balance between freedom of expression and data protection. The bill counters the spirit of the GDPR and fails to guarantee freedom of speech, as it breaches the constitutional freedom of the press and other mass information media in that they shall not be subjected to censorship (art. 40 of the Constitution of Republic of Bulgaria).
The Association of European Journalists-Bulgaria, along with some other organisations (the Access to Information Programme and the Union of the Bulgarian Journalists, The Association of European Journalists-Bulgaria) addressed their appeal to the President Roumen Radev, asking for a veto of the amendments. He vetoed the amendments on 4th of February 2019. According to the President these ten formulated criteria create unnecessary over-regulation, as they require journalists, scientists or writers to decide and prove lawful usage of personal data. According to his motives, the criteria concern the fundamental right to freedom of expression and information.
The parliament can override the veto by an absolute majority of votes, which means more than half of all deputes (121/240). So far, the Association of European Journalists-Bulgaria believes the odds are that the parliament will vote in favour and the amendments will be passed.
Therefore, we are strongly concerned that those amendments will allow the control over media and media outlets by the state and are direct violation of the idea and the guarantees made during the discussions for the adoption of the GDPR. We would like to address awareness on those problems and to attract some international pressure on this topic. We are strongly concerned that the Bulgarian legislator has not fully understand the purposes and the ideas of GDPR and the importance of finding the balance between freedom of expression and protection of personal data. Some statements of respected European organizations will help some awareness to be raised among the Members of Parliament.