I. Legal Framework
Constitutional privacy framework
The Constitution of Georgia guarantees the right to privacy in Article 20 of the Constitution.1 This article sets out guarantees against arbitrary search and seizures. Article 20 states: (1) Everyone's private life, place of personal activity, personal records, correspondence, communication by telephone or other technical means, as well as messages received through technical means shall be inviolable. Restriction of the aforementioned rights shall be permissible by a court decision or also without such decision in the case of the urgent necessity provided for by law; (2) No one shall have the right to enter the house and other possessions against the will of possessors, or conduct search unless there is a court decision or the urgent necessity provided for by law.
Data protection framework
Despite constitutional guarantees, there is no precise legislation for the protection of privacy or personal information. The Civil Code of Georgia, which entered into force in 1997, recognizes right to privacy, as a civil law tort.2 The code includes a very general article stating that a person may demand retraction of information invading into his/her private life: "A person is entitled to demand in court the retraction of information that defames his honor, dignity, privacy, personal inviolability or business reputation unless the person who has disseminated such information can prove that it corresponds to the true state of affairs. The same rule applies to the incomplete dissemination of facts, if such dissemination defames the honor, dignity or business reputation of a person."
Under the Civil Code3 of Georgia, persons may seek damages if they can prove the culpability of the person who disseminated the information.4 These provisions of the Civil Code have not been applied in courts' practice very often. In 2000, the General Administrative Code of Georgia was adopted. The code includes a Freedom of Information chapter, which, among other freedom of information rights, introduces the term "personal secret."5 The notion of "personal secret" is also found in Article 10 of the Code: "Everyone may gain access to official documents kept by an administrative agency, and obtain a copy thereof, unless such documents contain state, professional, commercial, or private secrets."
The validity of certain restrictions on disclosure of private secrets, along with other possibilities of closing or classifying documents is considered in the Administrative Code. Aiming to avoid complications and misunderstandings, the Code identified what is personal data and how information should be classified as secret. Article 27, clause (e) defines "personal data" as "public information that allows identification of a person." The definition of personal data as public information allowing identification of a person is insufficient for considering data stored in any public agency inaccessible to any third party; therefore, the issue of banning access to information is specifically addressed by Article 27.
Pursuant to Article 27 of the General Administrative Code, a data subject shall decide whether information should be deemed as personal secret: "The matter whether particular information constitutes a personal secret shall be decided by the information subject, except as otherwise prescribed by the law."6
After the adoption of the General Administrative Code, there has been much debate about whether a separate law on personal data should be adopted. In 2003, NGOs started to work towards a separate law, among them were IRIS Georgia and Liberty Institute. Draft laws have been prepared, but there have been no other steps taken in order to initiate the legislation at this time.
In 2004, an important piece of legislation came into force after a democratic breakthrough and a five year struggle. The "Draft law on Freedom of Speech and Expression."7.was adopted by the Georgian Parliament shortly after it gained the approval of the Council of Europe Experts8 The law sets out free speech guarantees, decriminalizes criminal defamation, envisages high protection for political speech, and includes clear distinction between private and public persons and facts and value judgments.9 This law also includes several provisions that are relevant to the right to privacy in Georgia. In particular, the law introduces the test of "reasonable expectation of privacy."10 Under the law "personal secret" is defined as follows: "information having personal value that should be protected according to the law as well as the information or facts with respect to which a person has a reasonable expectation of inviolability of private life. Information on an administrative agency shall not be considered a private secret."11 In addition, the law includes another provision stating: "The freedom of expression shall not be restricted by the reason of inviolability of private life and protection of a personal secret with respect to an event that should be known to a person for the exercise of the public self-government in a democratic society."12 On April 18, 2005, the Liberty Institute and Chief Justice Kote Kublashvili began organizing Judicial Training workshops on the new law.13 However, the judiciary of Georgia has experienced diminished capacity due to constitutional amendments adopted in 2004 that increase presidential influence over the judiciary.14
Georgia has adopted laws on access to government-held information.15 Although the laws provide right of access consistent with international standards, in reality access is often hampered by resistance from officials, lack of external oversight, broad exemptions, and poor implementation.
On the bases of Resolution No. 731 of June 16, 1992 of the government of Georgia, a State Inspection for the Protection of Secret Information was created. The Inspection was created by the "Law on Press and Other Means of Mass Media" adopted on August 10, 1991. On June 24, 2004, the "Law on Freedom of Speech and Expression" was adopted, which repealed the previous "Law on Press and other Mass media." The new law contains no mention of the State Inspection for the Protection of Secret Information.
Still, in 1997 the Inspection was listed under the independent state entities of the executive branch by the "Law on Structure and Rules of Procedure of the Executive Power." However, this was abolished by the "Law on Structure, Power and Activities of the Government of Georgia of 2004." In February 2004, the temporary provisions of the law ordered the functions of the State Inspection for the Protection of Secret Information to be transferred and implemented by the National Security Council of Georgia. However, in December 2004 the law was amended16 and the appropriate function has been transferred to the Ministry of Internal Affairs of Georgia. Unfortunately, it is not clear in what form this function is conducted by the Ministry, as there is no regulation adopted regulating the issue.
As for other agencies in respect of protecting secret information, the General Administrative Code of Georgia obliges all public entities to protect secret information kept therein from disclosure. Moreover, ministries and legal entities of public law are governed by normative acts, which establish principles for considering information secret and their protection.
- 1. http://www.friends-partners.org/oldfriends/constitution/constitution.geo...
- 2. http://www.microfinancegateway.org/files/24595_file_24595.pdf
- 3. Id.
- 4. Id.
- 5. http://unpan1.un.org/intradoc/groups/public/documents/UNTC/UNPAN004030.pdf
- 6. If any other law contains obligations to consider personal information secret, the information is classified. e.g. such obligations are established by the law of Georgia on Patients' Rights.
- 7. http://www.article19.org/pdfs/analysis/georgia-foe-guide-april-2005.pdf
- 8. http://www.coe.int/T/E/Human_Rights/Media/3_Assistance_Programmes/Legisl...(2002)002_en.asp
- 9. The Law on Freedom of Speech and Expression, adopted on June 24, 2004, Article 1.
- 10. Id. at Article 1, clause (n).
- 11. Id.
- 12. Id. at Article 13, clause (3).
- 13. http://www.liberty.ge/eng/menu_pages_full.php?menuId=12&subTitlesId=11&p...
- 14. Zaal Anjaparidze, "Critics Press for Improved Judicial Independence in Georgia," Eurasia Daily Monitir, April 26, 2006.
- 15. http://www.article19.org/pdfs/publications/under-lock-and-key.pdf
- 16. Amendments to the Law on Structure, Power and Activities of the Government of Georgia were passed on December 23, 2004.