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Chapter: 

IV. Governance issues

E-government

The aforementioned Metamorphosis survey, "Privacy in Macedonia 2009", also examines the adoption of privacy policies by the government websites using .gov.mk domains. The survey is based on the available records in the MARNet's register (third-level domains only). The register contains the information about ownership of the active .mk domains, including the name, administrative, and technical contact of the owners (e-mail and telephone).

This segment of the research is limited by the fact that some governmental websites also use second-level domains (e.g. www.vlada.mk) or even .COM (e.g., www.investinmacedonia.com). The number of these websites seems small in comparison with the number of "regular" gov.mk websites, and it is the opinion of the research team that the results obtained through analysis of the larger segment can be generalised to the overall Web presence of the state and local public institutions.

All 269 .gov.mk domains from MARNet's register, excluding the 56 domains that returned errors during this phase, were subjected to automatic checking similar to the one for the general .mk sample. Those that were found to be functioning were then checked manually, and 33 of them were found to be non-functional. The remaining 180 front pages were examined for links leading to a privacy policy or a document serving such a purpose.1 After excluding 15 duplicate domains that all led to the same website the remaining 165 functioning individual websites were examined. In effect, not a single website owned by the various levels of government in the Republic of Macedonia could be identified as having a functional privacy policy, a percentage even lower than the already established low presence of such documents on the Macedonian Web in general.

In 2009, several cases of the use of foreign-based services by government bodies also raised privacy concerns because the citizens' personal data were transferred outside the borders of the Republic of Macedonia. Namely, in order to conduct various official businesses, the representatives of several governmental bodies have required or invited the citizens to send their personal data via foreign services such as e-mail providers or social networks. In effect, citizens' personal data were placed outside the jurisdiction of the relevant Macedonian authorities (DPDP) as foreign companies are instead subject to the laws of their home countries.

In general, the use of free email providers remains widespread among the employees of all levels of government, who for correspondence often use their Yahoo!, Gmail, or Hotmail accounts for correspondence instead of an official email address on a gov.mk domain/their institutional domain. This practice also affects the establishment of ICT standards within public institutions and the archiving of correspondence, which should be part of the institution's system, and which needs to remain available for audits and other purposes.

For example, in an advertisement published on 9 July 2009 as part of the effort to "upgrade the concept of accountability and closeness to the citizens", the ruling political party published the e-mail addresses of its 52 MPs.2 Most of them used foreign-based services, such as Yahoo! (50 percent), Gmail (4 percent), and Hotmail (1 percent), while the rest used the Parliament's email "@sobranie.mk" (38 percent) or other Macedonian providers (6 percent).

A particular example of this tendency involved the celebration of visa liberalisation within the EU, a round-trip to Paris for 100 randomly chosen citizens, organised by the Secretariat of European Affairs on 17 December 2009. To participate in the draw, the citizens had to possess a biometric passport and send their personal data (name, surname, passport ID number, and telephone) in hardcopy through regular mail or by e-mail to a Gmail account.3

Open government

Free access to information and the freedom of reception and transmission of information are guaranteed by the Macedonian Constitution. Article 16 paragraph 3 states, "The freedom of personal conviction, conscience, thought, and public expression of thought is guaranteed. The freedom of speech, public address, public information, and the establishment of institutions for public information is guaranteed. Free access to information and the freedom of reception and transmission of information are guaranteed. The right of reply via the mass media is guaranteed. The right to a correction in the mass media is guaranteed. The right to protect a source of information in the mass media is guaranteed. Censorship is prohibited".

After a drafting process of over four years, the Law on Free Access to Information of Public Character (Freedom of Information Law) came into force on 1 September 2006.4 The Commission for Protection of the Right to Free Access to Public Information is in charge of monitoring of its implementation.5

For the first time after the adoption of the Law on Free Access to Information of Public Character in January 2006, the Law underwent substantial amount of changes in early January 2010.6 The Ministry of Justice drafted amendments to the existing law in October 2009 in a non-transparent process, without the participation of the Commission, the experts in the area, or representatives of civil society, although the process for amendment of the law was initiated and supported by the FOSIM and the OSCE spill-over mission in Skopje.

After two years of monitoring the implementation of the law, the idea to amend it was launched in mid-2008 in order to correct some of the law's weaknesses and to improve free access to information. The two partner organisations, FOSIM and the OSCE spill-over mission in Skopje, established an expert task group that worked on drafting the amendments together with a team consisting of Ministry of Justice officials. The main goals of the working group were: improving the definition of information holder and information of public character; regulating the use of the harm test; imposing obligations on information holders to disclose information of public character such as relevant laws, bylaws, and draft legislation, improving the availability of statistical data, press releases, and reports on the work on institutions' official websites; improving and regulating the right to appeal in some circumstances in which the right of access to information was not effective; improving the independent status of the Commission for Protection of the Right to Free Access to Information of Public Character7 (Commission) and redefining the composition of the Commission and conditions that a candidate for president, vice-president or a member of the Commission should fulfil; improving the administrative capacities of the Commission; redefining the content of the obligatory annual report that each information holder submits to the Commission; and improving the respect of the right of access to information by imposing various misdemeanour sanctions both against authorised officials and the official persons who fail to lawfully provide access to public information when asked.

Besides the joint work of the expert group and the Ministry of Justice, the amendments the Ministry submitted to the Parliament of the Republic of Macedonia had several substantial shortcomings. Therefore, FOSIM advocated improving the amendments by participating in the session of the Parliamentary Committee on the Political System and Inter-ethnic Relations in the stage of the first reading of the proposed amendments. Furthermore, FOSIM drafted amendments to the proposed changes and submitted them to the Assembly of the Republic of Macedonia through the Chairperson of the Standing Inquiry Committee for Protection of Civil Freedoms and Rights.

Most of the FOSIM's amendments were intended to stress the importance of charging the Commission with the ability to impose misdemeanour sanctions against information holders when they fail to provide access to information and also to legally bind the information holders to disclose the draft legislation. The latter was pointed out in order to strengthen the Commission's position and to improve the implementation of the law with the Commission's power to carry out misdemeanour procedures. However, this argument was not accepted by the Parliament and the courts continue to have the only jurisdiction for misdemeanour procedures. Although the importance of making draft legislation available was pointed out in the European Commission Report for the Progress of the Republic of Macedonia, the amendment that would have required information holders to make such information public was not approved either.

The amendments to the Law were enacted by the Assembly of the Republic in January 2010, encompassing some of the amendments proposed by FOSIM.

The Law on Local Self-Government of the Republic of Macedonia recognises the obligation to inform the public. Article 8 states: "(1) The organs of the municipality, the council committees, and public agencies established by the municipality shall be obliged to inform the citizens about their work, as well as about the plans and programmes which are of importance for the development of the municipality without any compensation, in a way determined by the statute. (2) The municipality shall be obliged to enable access to the basic information about the services that it provides to its citizens, in a way and under conditions determined by the statute of the municipality."8

In July 1999, the Republic of Macedonia signed and ratified the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Ã…rhus Convention).9

FOSIM continues to promote the right to free access to information. Project activities in 2009 focused on monitoring the implementation of the Freedom of Information Law, providing free legal aid for rejected requests and strategic litigation to test the Law. FOSIM, in cooperation with Youth Educational Forum (YEF) and Macedonian Young Lawyers' Association (MYLA), submitted a total of 800 (115 FOSIM, 190 MYLA, and 495 YEF) requests to over 90 institutions.10 The process of providing free legal advice and protecting citizens' rights before the relevant institutions continued during 2009 by securing free legal representation in cases where access to information is denied. More than 20 trained attorneys from MYLA litigated nearly 115 cases of complaints to the Commission. Most of the appeals were successful. The monitoring results showed that while progress is noted in comparison to previous years since the adoption of the Free Access Law, its implementation is still not satisfactory. Silence on the part of the administration (mute refusal) continues to be a challenge to the implementation of the law since approximately 30 percent of the requests were answered only after appeals were submitted to the Commission. Also, there was one administrative court dispute initiated during 2009, while one dispute in the Administrative Court that was initiated in 2008 was finally settled in favour of the information requester in June 2009.

Free legal advice for citizens continued to be provided through a help line that gives interested persons the opportunity to ask questions relating to free access to information and receive answers. Fifty-one calls related to different legal issues were recorded in 2009, indicating that the population is aware of neither the existence of the law nor of the rights this law guarantees. Even so, through the help line MYLA has helped citizens to prepare request forms, providing them with information as to how they can maximise the information they obtain, as well as explaining matters of interest.

In cooperation with YEF, FOSIM organised training for students. The procedures and aims of the Freedom of Information Law were clarified and detailed for 35 participants. The purpose of the training was to encourage participants and equip them with relevant knowledge on the use of the right to free access to information. Following the training, 287 requests were submitted by the participants. On the basis of data collected through the submitted Freedom of Information requests, Youth Educational Forum, with the support of FOSIM, drafted and published a report on the implementation of the European Credit Transfer System in the Republic of Macedonia that also contained a report on the implementation of the Freedom of Information Law. These results were publicly presented by FOSIM at the launch of the publication.

Additionally, in cooperation with MYLA, two discussion sessions were held on the topic of the Law on Free Access to Information of Public Character and the potential for its use for research purposes. The first was held with a group of journalists and focused on the possibilities the law opened up for investigative journalism. The second discussion session was held in cooperation with the Faculty of Law Iustinianus I at the University Sts. Cyril and Methodius,11 where before a group of 30 teaching assistants and faculty researchers, the advantages of applying the Law on Free Access to Information to academic research were presented.

FOSIM, through a public bid, chose a research agency to conduct a public survey for citizens and public officials regarding the free access to information. The results of the survey were devastating; the vast majority of the citizens did not know the law even exists. In addition, there were major differences between the citizens' opinions and those of the information holders. A press conference was organised in May 2009 to present these findings; the highlights of which are provided in a separate document.12 Based on the survey findings, FOSIM produced recommendations to the authorities, aimed at increasing the transparency and accountability of their work.

Other development

In 2009, the disclosure of classified information and wiretapped content on YouTube led to two political scandals in Macedonia. In both cases the person/s who uploaded the file have not been identified, and no information about possible police investigation has been made publicly available.

The first scandal took place in November and December 2009 and involved opposition party leader Ljube Boshkoski. A series of clips displaying his alleged "betrayal" of his comrade Johan Tarchulovski during their trial before the International Criminal Tribunal for the Former Yugoslavia were made available to the public. The clips showing Boshkoski reading an allegedly incriminating document during a court procedure in Pula, Croatia, were first published on YouTube and then widely propagated by pro-Government traditional media including Sitel TV13 and the national broadcaster, Macedonian Radio and Television.14 This so-called "Internet War" escalated two weeks later, when new clips appeared featuring statements by Tarchulovski branding Boshkoski as a traitor,15 Tarchulovski, through his lawyer, then claimed that the clips were forgeries.16 Even though one of the lawyers defending Boshkoski claimed that publication of the classified documents used in the Tribunal proceedings is a crime under Macedonian law,17 the law enforcement agencies have not publicly announced any investigation.

The second political scandal took place in late December and concerned the upload on YouTube of an audio recording of a apparently wiretapped conversation between the head of Market Inspectorate Sasho Akjimovski and a discothèque owner, during which they conspire to put a competitor out of business. The link spread through social and traditional media, which presented it as a scandal that revealed corruption within the current administration. Even though Akjimovski claimed that he was framed,18 he was fired two days later.19 The Minister of Economy announced a comprehensive investigation,20 but the Public Prosecutor announced that the clip cannot be used as sufficient evidence to start an investigation of the accusations of corruption.21 The authorities have not tackled the issue of discovering the source of the recording, either.

As reported above, the government body websites generally lack privacy policies. Moreover, in some cases, users' additional data – not relevant to the service provided by the website – are collected without providing any explanation about what is to happen to those data, how they will be archived, and how they will be used. For example, the .gov.mk website run by the Ministry of Information Society has no privacy policy and collects private data (email addresses) from everyone who downloads a package of free Macedonian Cyrillic fonts.22 Other institutional websites that do not use .gov.mk domains include the Parliamentary site, which uses a second-level .mk domain,23 and the Government's anti-drugs campaign, which uses a .com.mk domain that is outsourced to a private advertising agency.24 Neither of these two sites has a privacy policy, even though they collect personal data. In the case of the Parliamentary website, users who want to communicate with the deputies via online forms must input their name, surname, and e-mail address.25 The government's campaign against drugs asks visitors to participate in an online survey about their illegal drug use, i.e., to provide incriminating information that could potentially be linked to their IP address or other personal data left on the website, such as forum postings.

Non-government organisations' advocacy work

There is no strong Macedonian human rights NGO that specialises in privacy and personal data protection. However, several NGOs cover the issue with a specific focus in line with their mission and types of activities. Two particular subjects of concern in the reported period were the protection of the human rights of children on the Internet – including children's privacy – and the protection of privacy by the police and law enforcement agencies.

The NGO Metamorphosis Foundation organises an annual International Conference on Privacy Protection and Open Government that provides a forum for regional cooperation and networking among decision makers and activists from the Western Balkans with the purpose of Euro-integration, especially as it always includes representatives of the EU-based European Digital Rights (EDRI).26 The Open Society Institute Macedonia (FOSIM) advocates open government through public monitoring, educational and lobbying efforts aimed at promoting the Law on Free Access to Information of Public Character, the LPDP, and the Law on Classified Information in cooperation with the relevant state bodies and Metamorphosis.

On the occasion of International Data Protection Day, 28 January 2007, Metamorphosis and the Directorate, in cooperation with the EU project for Technical Assistance to the Establishment of the Directorate and Enforcement of the Data Protection Principles, prepared and published a special issue of the Metamorphosis ICT Guide entitled "Privacy as a Fundamental Human Right." Five hundred printed copies were distributed to government officials, MPs, media, and other stakeholders including university students free of charge, and the e-version of the Guide remains available for download on Metamorphosis website.27

Legal experts and human rights activists have raised concerns about the extensive use of detention as it relates to privacy violations and the presumption of innocence. The Macedonian Helsinki Committee28 and the network of five local NGOs29 that work with victims of alleged police abuse continuously condemned the spectacular arrests by the police that included inviting the media to film the handcuffed suspects escorted by law enforcement officers. In order to raise public awareness and condemn specific violations and spectacular arrests, nine media events were organised. As a result, TV Telma, one of the then six television stations licensed for national coverage, adopted the policy of no longer broadcasting any arrests and police-escorted transports.

Individual citizens have contributed to raising public awareness on privacy protection issues. The media gave significant attention to the public disclosure of the effects of 40 years of communist regime surveillance of the late poet Jovan Koteski, provided by his daughter, Jasna Koteska. In addition, a number of Macedonian bloggers have tackled privacy issues in posts about information society development or politics on a national level.

The Metamorphosis Foundation also provided opportunities for raising awareness on the part of opinion and decision makers. For example, the Metamorphosis Foundation included data protection sessions within the 2007 agenda of the Third International Conference e-Society.Mk. This conference served as a tool for establishing the e-Government Western Balkans Network. This conference was also organised in Albania, Bosnia and Herzegovina, Croatia, Montenegro, and Serbia, and included the participation of EU-based experts, in particular members of EDRI.30

In November 2007, the Recommendations for ICT Standards in the Civil Service in the Republic of Macedonia were published. The document stressed that privacy is a key right for e-government development.31 The government failed to provide any public response to these recommendations. However, during the June 2008 campaign, the leading political party announced that it will introduce IT standards in public institutions by 2010.32

During 2009 the Metamorphosis Foundation conducted two privacy-related projects: "Online Privacy Initiative" and "Online Privacy Made Easy". For the former project, Metamorphosis served as a watchdog, monitoring, reporting, and raising public awareness about privacy issues, as well as proposing practical solutions to some of the technical and legal challenges. In addition, Metamorphosis continued to provide two-way translations (Macedonian-English) of at least one to two privacy-related articles every week from Macedonia and the EDRI-gram, and to promote good practices and useful websites and initiatives through the regular column "website of the day" in Vreme daily and its affiliated blog. For the latter project, building upon the CRISP project that finished in 2008, Metamorphosis continued to cater to the needs of children and teenagers for more educational e-content by continuing to provide age-relevant information through a column of the weekly supplement for kids Kolibri in Nova Makedonija daily, on the "Safely on the Internet" project website,33 and through commencing production of educational videos and games.

As part of the International Action Day "Freedom not Fear 2009 – Stop Surveillance Mania!"34 Metamorphosis, FOSIM, and six other NGOs (Internet Hotline Provider Macedonia, Macedonian Young Lawyers Association, Youth Educational Forum, ELSA-RM, and Macedonian Centre for European Education), joined the DPDP in organising the distribution of flyers in Macedonian and Albanian, and in providing expert consultations/hands-on-education for citizens on 12 September 2009 in Skopje.35

Privacy and transparency issues were raised during the Fifth International Conference e-Society.Mk "I Media"36 organised in Skopje 2-3 December 2009,within the context of the development of new media and the enhancement of active civic participation. Localisation and adaptation of the applications built by the British NGO MySociety37 have been proposed as a solution to the need for establishing of multi-directional communication systems between citizens and the various levels of government. Metamorphosis and FOSIM undertook the initiative to adapt several of the applications from this open standards/FOSS-based suite. Applying this example of best practice will also affect the area of privacy, because the applications put minimum requirements for disclosing data by citizens, showing an alternative to the unnecessary collection and undefined retention by current government applications.

In May 2010, 16 NGOs including the Metamorphosis Foundation, Foundation Open Society Institute -- Macedonia, Transparency Macedonia, and Helsinki Committee for Human Rights in Macedonia started an action supported by over 1,400 individual citizens against privacy-damaging changes of Law on Electronic Communications that give the police powers of unaccountable surveillance.38 NGOs organised public debates and media events to provide opportunities for civic participation denied by the government. Governmental representatives did not participate in these events and avoided confrontation with legal experts and human rights activists. The conclusions by the NGOs, and the expert analyses were submitted to all MPs in hardcopy before the vote, together with a public petition.39 However, the authorities ignored this effort and the rubber-stamping majority in the Parliament passed the law, which is currently being contested before the Constitutional Court by the original group of four NGOs.

International obligations and International cooperation

Since 1994 Macedonia has been part of the 1966 UN International Covenant on Civil and Political Rights (ICCPR) and of its First Optional Protocol, which establishes an individual complaint mechanism.40

The Republic of Macedonia is a member of the Council of Europe and has signed and ratified the Convention for the Protection of Human Rights and Fundamental Freedoms.41 In 2006, it signed and ratified Convention No. 108 for the Protection of Individuals with Regard to Automatic Processing of Personal Data42 and, in 2008, its Additional Protocol regarding Supervisory Authorities and Transborder Data Flow.43 In 2004, the Republic of Macedonia ratified the Council of Europe Convention on Cybercrime.44

 

Footnotes