The Hungarian Parliament has recently passed the new constitution (the Basic Law), which has been signed and promulgated by the President of the Republic on 25 April 2011 and scheduled to enter into force by 1 January 2012. The Government has already promised to pass all fundamental legal provisions necessary for the entry into force of the new constitution in this year, which will include, inter alia, the adoption of a new Data Protection Act.
Notably, the Basic Law in its 6th Article regulates the fundamental right to privacy and data protection as well as its guarantees. Article VI (1) of the Basic Law generally lays down that everyone is entitled to respect for his or her private and family life, home, communications and good reputation, whereas the 2nd paragraph provides for the the right to the protection of personal data, as well as for the right to access and disseminate information of public interest. Finally, the 3rd paragraph states that an independent authority shall be responsible for the enforcement of the protection of personal data and freedom of information.
Although the Hungarian Data Protection Commissioner, Dr. András Jóri also participated in the drafting process and parliamentary debate of the Basic Law, where he also announced its proposal for the Information Commissioner, apparently, the new provisions of the Basic Law – replacing the ombudsman model with an agency model of privacy enforcement – did not match the expectations of the Commissioner. Under the provisions of the Basic Law, the enforcement of the right to the protection of personal data and freedom of information had been assigned to an “independent authority”, which means in practice the full abolition of the Data Protection Commissioner’s position and the conferring of its competence to a government body / agency with administrative (punitive) powers which has been confirmed by Fidesz parliamentary group chairman János Lázár in an interview given to the popular Hungarian news portal index.hu.
In response to János Lázár’s above statements, Commissioner András Jóri stated in an article recently published by index.hu that the new Basic Law is in conflict with EU law and he would do his best to defend the office / position of the Commissioner with all remedies available to him. Jóri also expressed its serious concerns regarding the independent status of the Data Protection Agency that must be guaranteed by Hungary in line with the European Data Protection Directive and argued that the Directive does neither allow exercising any direct or indirect influence over the DPA, nor its replacement. In that regard, Jóri considers that the functioning of the Data Protection Commissioner could not be abolished, but extended, otherwise the direct conflict with the EU Directive’s provisions could not be avoided. Thus, if the Government maintains its original intention to assign the competence of the Commissioner to a state body whose independence might be questionable (in contrast to the Commissioner that is truly independent from the Government and other state organs), Jóri believes that due to the breach of EU law this would likely result in the EU Commission’s legal action against Hungary.
