So far Armenia has not seen any cases of subjecting to liability for illegal collection, processing and imparting of personal data. Andranik Markosyan, Director of the NGO Digital Rights compares Armenia with the EU States where the minimum fines in this sector start from 115 000 Euro. The information security expert is convinced that personal data are collected in an arbitrary manner in Armenia: ‘You need to perform a small action, you’re asked for your passport, which is then being photocopied without even asking you. Nobody asks why they are being copied, what will happen to these copies, whether they are going to be duly destroyed or whether they will go to some unknown destination.’
Mr Markosyan does not attach much importance to who collects the data – a bank clerk or a journalist since the law renders them all equal. However, this had not been the case until 16 December 2016. The Law on the Protection of Personal Data foresaw exceptions: collection and processing of personal data was not subject to restrictions if done exclusively for journalistic, literary and artistic purposes. This was prescribed by paragraph 3 of Article 1 of the Law, which, however, lost effect by the amendments enacted by the parliament on 16 December 2016. Moreover, this process was accompanied by utter secrecy.
Gevorg Hayrapetyan, Head of the Agency for the Protection of Personal Data under the RA Ministry of Justice remembers that the experts in the field learnt about that much later: ‘Because the amendment was made in between the first and second readings along with a package of amendments to other laws.’
Even today Gevorg Hayrapetyan does not see anything negative in removing this paragraph from the Law: ‘The Law on the Protection of Personal Data did not have the burden of ensuring freedom. This burden had already been outlined for journalists through other laws and the judicial practice. Journalistic freedom is the burden of the Law on the Mass Media, Article 7 of which prescribes how a journalist must treat the information violating the right to privacy or relating to such. This burden had been outlined by the decisions of the European Court of Human Rights.’
Shushan Doydoyan, President of the Freedom of Information Center notes: ‘In fact this Law is not being applied fully since many of its articles have remained on paper.’ Shushan Doydoyan, ex-Head of the Agency fears that if suddenly the State decides to apply the Law on the Protection of Personal Data in its current form, journalists will simply be unable to work: ‘For example, if a public official does not consent to processing of his/her personal data, if the logic of the Law is applied in full, the journalists will beunder an obligation to respect that right of his/her and refrain from collecting, storing or imparting information on him/her, which is in direct contradiction with journalistic activity and the goal of the press.’
Gevorg Hayrapetyan, Head of the Agency for the Protection of Personal Data does not share such fears. According to his figures, when the Law was circulated in 2016, 11 proceedings were instituted, in 2017 their number was 21 and in 2018 – 30. Meanwhile, 23 of these 62 proceedings have been filed on the basis of citizens’ applications, 39 of them on the Agency’s initiative (in some cases, based on alerts from NGOs and citizens). In 600 cases, advice was provided.
According to Gevorg Hayrapetyan, only 1 of these proceedings was instituted on the basis of a complaint against a mass media outlet and the citizen lost in the proceedings against the media outlet.
In general, in the event of an apparent breach of the right of the media to protect personal data, the problem has been resolved through the use of “soft law”, consultation, personal best practice, or guidelines. Moreover, as the Head of the Agency hints even the European legislation does not foresee such advantages of processing personal data for journalists that can place citizens on an unequal footing with them. From the very start our law excluded any restrictions on the processing of personal data for journalists provided this was not a state, service-related, banking, insurance secret or was not connected with national security or defence.
‘In other words, our law’s exclusions were set in much more categorical terms whereas the European law does not have such categorical exclusions’, says Gevorg Hayrapetyan, ‘The European law says yes, the protection of personal data must also be respected including for journalistic purposes, it is not a permission for complete absence and a green light for permissiveness. However, the peculiarities need to be taken account of along with the importance of serving the public interest.’
Shushan Doydoyan does not share this opinion. According to her, Europe has a more democratic approach to the role of journalists in processing the personal data. They simple take account of the exclusive role of journalists in public life which was exactly what was prescribed by Paragraph 3 of Article 1: ‘By its logic, the annulment of Article 3 is also in contradiction with Article 108 of the CoE Convention, which also guarantees full protection for the press and for all citizens in the area of the protection of personal data and the return of this Article will to some extent harmonise our legislation with Article 108.’
The former public official reminds that without paragraph 3 of Article 1 the current Law is a mine placed under a journalist. A public official targeted by a journalistic investigation may simply apply to the Agency and demand that the latter examines the relevant journalist’s computer relying on the assumption that the journalist has not properly stored the personal data related to him/her. Such whims, according to Shushan Doydoyan, need to have countermeasures: ‘I think that it is of crucial importance to return, to annul the amendment adopted in 2016 and acknowledge that these regulations do not apply to the press. The obligations, regulations of this Law cannot apply to the mass media because they have their mission of imparting information to the public.’
It is known that so far paragraph 3 of Article 1 has not been applied to any journalist. However, experts have concerns that the very absence of this paragraph may result in public officials and other parties under journalistic investigation flooding the Agency with complaints in the near future. And when this happens, Armenia which has just been freed from the paws of the totalitarian system may, according to specialists, forget about investigative journalism.