Abstract
The new democracies of Central and Eastern Europe had to implement not only the new rights and the underlying principles of the Western world but their enforcement mechanisms, too. Among the new rights and liberties, informational rights, including privacy and data protection, played a prominent role in the change of the political regime in these countries. Hungary was a front-line student in working out the new system of informational rights and, mainly by establishing the institution of the Parliamentary Commissioner for Data Protection and Freedom of Information, in developing enforcement mechanisms. Beyond the Commissioner’s importance, which was further increased by the exaggerated expectations towards ombudsman-like institutions, systemic conflicts can be observed between the legal approaches based on constitutional law, on the one hand, and civil law, on the other, and these conflicts had a significant impact on the practice of the courts. Furthermore, the historical loss of illusions connected to the change of the political system resulted in decreasing compliance with the Commissioner’s recommendations and the provisions of data protection law alike. The present political majority dismissed the Commissioner and abolished his institute, and replaced it with a government authority of lower legitimation. This move shows a new concept in enforcing data protection law, and these changes have been heavily criticised by various international organisations, including the European Commission, which started an infringement proceeding against the country. Although it would be too early to judge the impact of these changes on enforcing privacy and data protection in Hungary, the long-lasting advantages of the early development of the legal system and the enforcement mechanisms can clearly be observed and recommended to other newly democratic countries.
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Notes
- 1.
For an analysis of freedom of information in Central and Eastern Europe, see Szekely, Ivan, “Central and Eastern Europe: Starting from Scratch”, in Ann Florini (ed.), The Right to Know: Transparency for an Open World, Columbia University Press, 2007, pp. 116–142.
- 2.
For example, data protection was often confused with data security .
- 3.
Laszlo Solyom was among the members of this group, as were Laszlo Majtenyi, the first data protection ombudsman, and the author of this chapter.
- 4.
Conference on the institution of constitutional complaint , organised by the Eotvos Karoly Policy Institute on 21 February 2014, in the OSA (Vera and Donald Blinken Open Society Archives at Central European University), Budapest.
- 5.
The data protection ombudsman became one of them.
- 6.
Solyom followed here an earlier analysis by Laszlo Majtenyi, presented at the conference “Two constitutions (1989–2011)” held at OSA on 21 March 2011.
- 7.
The research centres and private polling firms, which now mostly work as the Hungarian subsidiaries of international polling companies, originally were formed from the institute’s professional and human resources. Thanks to the TK researchers’ passion of collecting, copies of the research materials, and in some cases even the data files, have survived and have, since 2013, been available for research at the OSA. (Fonds HU OSA 420, see http://osaarchivum.org/db/fa/420.htm.)
- 8.
The important question one needs to ask is how far can one trust the data of public opinion polls recorded under a dictatorial regime, and whether what the respondents say can be accepted as their own opinions. Participants of the conference “TK 3.0: Did People Lie in Kadar’s Hungary?”, which was held in April 2013 at the OSA concurred in the view – in harmony with earlier professional opinions – that the surveys conducted by TK had yielded authentic information about public opinion; it came with the price that certain parts of these research results could never be published before the democratic transition.
- 9.
Much can be learned from the comparison of two surveys, which used similar methodology to find out about what was better in Hungary than in the West in public opinion. In 1981, a considerable majority of the respondents thought better of the Hungarian situation in all of the areas (including the general moral condition of society, the well-balanced lives of families, and the freedom of opinion), while by 1987, the scenario had radically turned around. A retrospective analysis of these surveys can show not only the changes in values, but also the radical weakening of the regime’s legitimacy in these years. See Vasarhelyi, Maria, “Lattuk-e, hogy jon?” [Did we see it coming?] Jel-Kep, No. 3–4, 2010, pp. 91–97.
- 10.
The research documentation and the data files are now held in the OSA.
- 11.
Szekely, Ivan, Janos Tolgyesi and Gabor Varnai, Information privacy in Hungary. Survey report and analysis, Hungarian Institute for Public Opinion Research, Budapest 1991.
- 12.
The complete English-language study is available at
http://www.sscqueens.org/sites/default/files/Information_Privacy_in_Hungary.pdf
- 13.
Majtenyi, Laszlo (ed.), The first three years of the Parliamentary Commissioner for Data Protection and Freedom of Information, ABI, Budapest, 1998, p. 11.
- 14.
According to a 1998 survey by Szonda Ipsos, 43 % of the population knew about the data protection ombudsman, and the ombudsman’s office in general ranked fourth in the list of most trust ed institutions (after the President of the Republic, the Constitutional Court and the respondent’s favourite political party).
- 15.
According to the results of the survey repeated 10 years later, in 2008, 46 % of the respondents had heard about the institution of data protection ombudsman, which earned Hungary second place among the countries of the European Union (Flash Eurobarometer 225, http://ec.europa.eu/public_opinion/flash/fl_225_en.pdf).
- 16.
According to a 2008 survey by Szonda Ipsos, the trust index of the institution of ombudsman dropped from 63 to 52 % in 10 years (it must be pointed out, however, that the trust for institutions in general was also declining at the time).
- 17.
Istvan Csurka, chairman of the Hungarian Justice and Life Party, Spring 2001. See http://www.origo.hu/itthon/20010426antidemokratikus.html [in Hungarian]. The political attacks led to the obstruction of the first data protection ombudsman’s re-election; the post was eventually filled after a 6-month delay.
- 18.
Although the possibility of enforcement through court action already existed before the introduction of the independent supervisory body, this hardly ever happened in practice. (This partly proved that there was a real need for the creation of a specialised supervisory and enforcement institution.)
- 19.
For more on this, see Szekely, Ivan, and Mate Daniel Szabo, “Privacy and data protection at the workplace in Hungary”, in Sjaak Nouwt, Berend R. de Vries and Corien Prins (eds.), Reasonable Expectations of Privacy? Eleven Country Reports on Camera Surveillance and Workplace Privacy, IT & Law Series, T.M.C. Asser Press, The Hague, 2005, pp. 249–284 [pp. 252–255].
- 20.
The political elite of the democratic transition proved to be less circumspect in making the whole of the constitutional system impervious to these kinds of changes, as vividly demonstrated by the recent political changes related to constitutionality.
- 21.
In the collection and analysis of these, the earlier mentioned interdisciplinary team working under the aegis of the KSH played a prominent role.
- 22.
Later on, when he was already President of the Republic, the university awarded Laszlo Solyom an honorary doctorate (“Sterne unserer Jugend – Ehrendoktorwürde des Fachbereichs Rechtswissenschaft für den Ungarischen Staatspräsidenten Prof. László Sólyom”, UniReport 7, 15 November 2006, p. 2. http://www2.uni-frankfurt.de/44481170/unireport_07-2006.pdf).
- 23.
The federal state of Hessen, 1970.
- 24.
Although the official title of the – by now abolished – position was Parliamentary Commissioner , the public usually referred to him as data protection ombudsman, just as they did to the other two varieties of parliamentary commissioners.
- 25.
Act LXIII of 1992, Section 26 (1).
- 26.
Section 26 (4) [renumbered as (5) after a subsequent modification].
- 27.
This mostly happened in the case of service providers with a large number of domestic clients, according to the experience of the author who had, earlier on, worked as an expert and advisor – naturally, bound by very strict secrecy obligations.
- 28.
In the period of the thawing of the communist ideology during the Kadar regime, journalists were able to praise the achievements of the capitalist system almost in any areas, providing they ended the article with a turn of phrase something like “the future belongs to communism” or “the world’s leading power is the Soviet Union” – this was to what the term “red tail” referred.
- 29.
The broader framework of the initiative was the establishment of an ad hoc committee by the President of the Academy of Sciences in 2005, which dealt with “the conceptual issues of information society and the most burning problems of society management (sic) at the moment”. The chairman of the committee was the academy member Tibor Vamos, the president of SZTAKI.
- 30.
When the committee completed its report in May 2006, Laszlo Solyom , whose “persuasion” the committee regarded as crucial, fulfilled the office of the President of the Republic. The incumbent data protection ombudsman was not invited to participate in the committee’s work.
- 31.
This lobby eventually was successful, in the space for manoeuvring created after Laszlo Solyom ’s term as President of the Republic had ended, the institution of the data protection ombudsman had been abolished, the constitution had been rescinded and the new law replacing the data protection law had been passed, clearing the way to revoking the ban on the standardised and universal personal identification number, which had been one of the symbols of opposition to the dictatorial regime in the area of information law.
- 32.
The ombudsman regularly gave a detailed account of this activity in his annual reports.
- 33.
Act XC of 2005 – its provisions were later incorporated into Act CXII of 2011, which replaced the data protection law.
- 34.
The similarities and differences between the respective approaches of the three data protection ombudsmen were revealed to the public at a roundtable discussion held during the last international professional conference before the abolition of the institution (“Data Protection Commissioner: 1995–2011”, 28 September 2011).
- 35.
In this way, the data controllers in fact had withdrawn behind the walls of passive resistance; as the ombudsman had no means to enforce the decision an impasse followed in the execution of the data protection law.
- 36.
This latter phenomenon was confirmed by the empirical research conducted in an ongoing EU FP7 research project, IRISS (http://www.irissproject.eu), in the course of which the researchers attempted to access their own personal data on the basis of their rights guaranteed under the data protection laws in various countries, including Hungary.
- 37.
Given their training and practical work, the judges understandably display more competence in the traditional branches of law (civil law, criminal law, etc.) and have difficulty identifying with the approach more closely related to the fundamental rights laid down in the Constitution. In their arguments, they tend to rely on the civil code, rather than on the data protection law or the sector-specific provisions of data protection regulations . Only a small number of judges are conversant with information rights (even though the first data protection ombudsman had still made the effort to regularly organise joint professional consultations with representatives of the judiciary, with whom he discussed actual problems in the interpretation of the law).
- 38.
Act LXIII of 1992, Section 24. a), Section 27 (1).
- 39.
For example, the 1995 law on direct marketing or the 1997 law on data protection in health care.
- 40.
See the data protection law in health care.
- 41.
Laszlo, Gabor, “Magyarorszagi weboldalak adatvedelmi nyilatkozatainak elemzese” [Analyisis of privacy policies on Hungarian webpages], in Ivan Szekely and Mate D. Szabo (eds.), Szabad adatok, vedett adatok [ Open data , protected dataa, BME GTK ITM, Budapest 2005, pp. 95–114.
- 42.
This was replaced by a new Basic Law, designed for a similar purpose.
- 43.
The designation “Republic” disappeared from the official name of the country.
- 44.
For a critical review of the changes, see
http://ekint.org/ekint_files/File/hungarian_ngos_assessing_the_draft_constitution_of_hungary_20110412_k.pdf and http://ekint.org/ekint/ekint_angol.news.page?nodeid=551
- 45.
- 46.
In its April 2012 bulletin, the Committee announced that it had accepted the Hungarian responses in the area of the national bank as adequate, while in the case of the judiciary and the data protection authority, it upheld its criticism.
- 47.
The European Commission for Democracy through Law – better known as the Venice Commission, as it meets in Venice – is the Council of Europe’s advisory body on constitutional matters. It provides legal advice to its Member States and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards.
- 48.
- 49.
While we know of a number of supervisory authorities in long-established democracie s that have managed to remain independent regardless of their integration into the government structure, in the case of the new democracies , there are several factors that can endanger the genuine independence of such agencies.
- 50.
Jori, Andras, “The end of independent data protection supervision in Hungary – a case study”, in Serge Gutwirth, Ronald Leenes, Paul de Hert, Yves Poullet (eds.), European Data Protection: Coming of Age, Springer, Dordrecht, 2013, pp. 395–406.
- 51.
In the opinion of the author – who was among the founders of the institution of data protection ombudsman – the strengthening of the official powers would have been reconcilable with the role and parliamentary legitimation of the ombudsman.
- 52.
Act CXII of 2011, Section 38 (4) c).
- 53.
Section 38 (3) d), e).
- 54.
For example, one of the sections enquired whether the pharmaceutical lobby should be brought down, because “they take billions out of people’s pockets”, while another asked whether education should be adjusted to the real demands of the economy, etc. A similar “national consultation ” was conducted in May 2015 “on immigration and terrorism ”.
- 55.
Central Office for Public Administrative and Electronic Public Services (KEK KH).
- 56.
http://www.jogiforum.hu/hirek/25999 [in Hungarian].
- 57.
Attila Peterfalvi, President of the NAIH, already demonstrated that he tends to offer a narrow interpretation of the law in a high-profile case back in the days when he was still data protection ombudsman, and that incident paradoxically earned him the Big Brother Award – the ironic title awarded by civil society actors to institutions or persons doing their best to erode people’s private lives. The case concerned the right of department stores to fit their changing rooms with cameras, which Peterfalvi defended as legal on the grounds that the customers had been informed about it.
- 58.
When the government carried out a similar campaign in 2012, entitled as National Consultation, it had previously changed the law in order to make its actions legally unassailable. Nevertheless, in the view of the Eotvos Karoly Policy Institute (EKINT), a non-governmental organisation formed by internationally recognised experts on data protection law, led by the first data protection ombudsman, the government’s data collection through questionnaires still remained unlawful, which prompted EKINT to ask for an investigation of NAIH in a petition submitted in June 2012. However, NAIH declined to launch an investigation . See http://ekint.org/ekint/ekint.news.page?nodeid=537 [in Hungarian].
- 59.
Case no. 198/A/1997. See Majtenyi, Laszlo (ed.), The first three years of the Parliamentary Commissioner for Data Protection and Freedom of Information, ABI, Budapest, 1998.
- 60.
http://www.naih.hu/files/1033_V_2012-2.pdf [in Hungarian].
- 61.
During the first 31 months of the NAIH’s operation, only 5 % of the fines were levied on state data controllers and 95 % on private organisations.
- 62.
See Szabo, Mate D., and Fanny Hidvegi, “Ket itelet es vegrehajtasuk” [Two judgments and their enforcement], Fundamentum, Issue 4, 2014, pp. 69–82.
- 63.
“Hungary violates EU law on ending data protection ombudsman’s contract, says European Court official”, Daily News Hungary, 10 December 2013. http://dailynewshungary.com/hungary-violates-eu-law-on-ending-data-protection-ombudsmans-contract-says-european-court-official/
- 64.
Court of Justice of the European Union, Press Release No 53/14, Luxembourg, 8 April 2014. Judgment in Case C-288/12, Commission v Hungary.
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140053en.pdf
- 65.
Nezopont Institute, “Az adatvedelem magyarországi helyzetenek tarsadalmi megitelese” [The public conception of the situation of data protection in Hungary], February-March 2013.
http://www.naih.hu/files/adatved-kozvelkut-2013-03.pdf [in Hungarian].
- 66.
Laszlo Majtenyi’s subsequent public activities, in which constitutional issues and data protection cases have played a central role, probably also contributed to his greater recognition.
- 67.
See, for example, Darch, Colin, and Peter G. Underwood, Freedom of Information and the Developing World. The Citizen, the State and Models of Openness, Chandos Publishing, 2009.
- 68.
See, for example, Scheppele, Kim Lane, Testimony, U.S. Commission on Security and Cooperation in Europe, Hearing on “The Trajectory of Democracy – Why Hungary Matters”, 19 March 2013.
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Szekely, I. (2016). From a Model Pupil to a Problematic Grown-Up: Enforcing Privacy and Data Protection in Hungary. In: Wright, D., De Hert, P. (eds) Enforcing Privacy. Law, Governance and Technology Series(), vol 25. Springer, Cham. https://doi.org/10.1007/978-3-319-25047-2_4
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