European Interreligious Forum For Religious Freedom

Interview: Top data protection international expert on the Hungarian Scientology case


Written the Saturday, November 4th 2017 à 18:16
EIFRF




Prof. Dr. Jos Dumortier is an internationally renowned top expert in data protection. Since 1993, he has been a Professor of Law at the Law Faculty of the University of Leuven, where he teaches data protection. Back in the 90s', he was one of the first Belgian lawyers to deal with data protection, long before other lawyers started practising this area of law. At that time he was appointed by the Belgian Government to draft the Belgian Data Protection Act. He very frequently acts as counsel to the Belgian Federal Government, the Belgian Federal Public Service of Information and Communication Technology, the Flemish, Walloon and Brussels Governments, the European Commission, the Dutch government and various other Belgian and international public sector bodies to draft contracts or provide advice in these areas of law.


EIFRF interviewed him on the "Scientology case" in Hungary, where the Scientologists are the target of a campaign from the Hungarian government, which decided to go against them via the National Data Protection Agency. This agency then decided to arbitrarily seize Church of Scientology parishioner files, including priest-penitent files. 

EIFRF: The Hungarian Data Protection Agency and Hungarian National Bureau of Investigation are pretending that the folders that the Church of Scientology uses for monitoring the spiritual progresses of its parishioners, violate the Data Protection regulations of the European Union. What do you think about it?
 
Jos Dumortier: From a strictly legal point of view, these folders are outside the scope of the European data protection legislation. The European legislator never aimed at introducing formal legal rules for handwritten notes, taken by someone on a sheet of paper during a meeting, an interview or, as in the Church of Scientology, an auditing session.
Data protection laws are intended to protect individuals against automated or manual means which enable easy and rapid retrieval of personal information about a specific individual, even if this information is stored in different sources. This is primarily a characteristic of computerised files. Only if manual, paper-based, methods enable similar retrieval, linking or associations, then these methods are also included in the scope of data protection legislation.
Extending this scope to all kinds of handwritten notes or other paper documents, would lead to absurd consequences. The Hungarian data protection supervisor also seems to think that paper-based dossiers are submitted to the European data protection rules if the documents are properly arranged in dossiers, or if the dossiers are stored in alphabetical order. The consequence of this reasoning is that it would suffice to bring some disorder into your paper documents, to escape from the law! It is evident that this has never been the objective of the European legislator.  

EIFRF: This criticism against the folders kept by the Church of Scientology has already been raised by the Prosecutor office in Belgium. What has been the final decision of the Belgian courts, did they found that the Church of Scientology was guilty of a crime related to data protection? Are there other instances where the folders kept by the church of scientology to monitor the spiritual progresses of its followers have been examined by official bodies?

Jos Dumortier: The public prosecutor in Belgium attempted to get the Church of Scientology sanctioned on the basis of similar accusations as the Hungarian data protection supervisor today. The argument that the paper files held by the Church of Scientology are regulated by the provisions of the data protection law, has been rejected, not only by the Brussels tribunal in the Church of Scientology case, but also by a Belgian Court of Appeal in a similar case about another religious organisation (Jehovah Witnesses).
Also in other countries, like Sweden, the data protection authorities have, likewise, judged that the paper files held by the Church of Scientology are outside the scope of the European data protection law. 
Also the Belgian highest court, the “Court of Cassation”, has judged  that, to bring personal data contained in paper dossiers within the scope of the data protection legislation, three criteria need to be fulfilled:
1) the data themselves (not the documents only) need to be structured according to specific criteria,
2) these criteria need to relate to individual persons, and
3) the criteria should allow easy access to the personal data.
This case dealt with HR dossiers held by the Ministry of Justice! The decisions of the Belgian courts are perfectly in line with recital 27 of the European data protection Directive, which states that: “files or sets of files as well as their cover pages, which are not structured according to specific criteria, shall under no circumstances fall within the scope of this Directive”.

Also in other countries, like Sweden, the data protection authorities have, likewise, judged that the paper files held by the Church of Scientology are outside the scope of the European data protection law.
 
EIFRF: On the other side, do you think that the fact that the Hungarian authorities seized and consulted these folders containing personal data protected by Priest-Parishioner privilege, could be a problem, or even a crime based on personal data protection EU law?

Jos Dumortier: One of the most important recitals of the European General Data Protection Regulation is Recital 4. It is stated as follows: “The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity”. Consequently, data protection supervisory authorities are requested to respect a fair balance between the personal data protection rights of an individual and freedom of religion.
It leads to the paradoxical consequence, that the individual privacy and personal data protection rights of the parishioners are damaged as never before by an authority which has been established precisely to protect those privacy rights!
In the Hungarian case against the Church of Scientology this “fair balance” is completely absent. It leads to the paradoxical consequence, similar to  what we experienced in the Belgian Scientology court case, that the individual privacy and personal data protection rights of the parishioners are damaged as never before by an authority which has been established precisely to protect those privacy rights! 
In some other countries, such unwanted situations have been anticipated by legislators in a better way than in Europe. The Japanese data protection law, for example, explicitly states that an investigation by the data protection authority “in the course of requiring the submission of material or of conducting an onsite inspection should not hinder the freedom of expression, freedom of academia, freedom of religion, and freedom of political activity”. Similar to Europe, the Japanese legislator has attributed very large powers to an independent data protection supervisory authority, but at the same time, ensured that these powers can never be (ab)used to hinder the exercise of fundamental rights and freedoms.
 
 
 
 
 


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