Referring to the public appeal of the Privacy Research Association (the Association), no. 01-02-1001 of 19.10.2018 on the amendments made at art. 5 and art. 15 of the Law on the protection of personal data through the Law No. 143/2018 in the framework of data exchange and interoperability, addressed to the competent authorities and international donors present in the Republic of Moldova, the Association informs the following.
On November 27, 2018, the Association had received the official answer on behalf of the State Chancellery (letter No. 12-05-9492 of 22.11.2018), which refers exclusively to the provisions of Law no. 142/2018 on data exchange and interoperability, the approval of which was welcomed, as stated in the text of the Association’s public appeal.
Therefore, contrary to the legal issues revealed by the Association in the appeal, the State Chancellery makes no reference to the Law no. 143 for amending and completing some legislative acts, adopted on 19.07.18, through which direct ammendments have been made to the provisions of Law no. 133 of 08.07.2011 on the protection of personal data, aiming at the enforcement of the Law no. 142/2018 on data exchange and interoperability, that establishes:
- Art. 5 of the Law no.133/2011 of 08.07.2011 on the protection of personal data, letter g): „the consent of the subject of personal data is not requested in cases where the processing is necessary for data exchange under the conditions of the legislation in force on data exchange and interoperability”;
- Art. 15 of the same Law: when personal data are accessed and processed through the interoperability platform, the following should not be respected:
- the principles of protection of personal data (processing shall be correct, legal, non-excessive, kept for a specified period of time and only for specific purposes);
- the rights of the data subject ( to be informed about the access, have the right of access, intervention, opposition and the right to justice).
- no clarification has been given to explain the wording of the amendment to Art. 15 of the Law 133/2011, that allows the text article to be interpreted as being vague, unclear and abusive in terms of human rights and fundamental freedoms, especially those relating to the processing of personal data.
It shall be noted that all the three laws mentioned in this note and in the original appeal (Law No. 142/2018 on data exchange and interoperability, Law no. 143 for amending and completing some legislative acts, adopted both on 19.07.18, and Law No. 133 of 08.07.2011 on the protection of personal data) entered into effect on 10 November 2018.
Although the Law No. 142/2018 on data exchange and interoperability is a good and necessary one, the provisions on the processing of personal data and the powers of the national supervisory authority referred in the text of the Law No. 142/2018, that have been subsequently changed by the Law No. 143/2018 with direct amendments in the text of Law No. 133/2011, with the purpose of enforcement with no legal conflicts of the legal framework for interoperability and exchange of data, these amendments do not correspond and contradict with the European norms that safeguard the fundamental rights and freedoms of the person with regard to the processing of personal data.
Finally, the Association continues to be concerned about the legal issues raised previously in the public appeal, that can be accessed here: https://privacy.md/2018/10/19/public-appeal/?lang=en