{"id":113778,"date":"2020-11-17T17:30:03","date_gmt":"2020-11-17T14:30:03","guid":{"rendered":"https:\/\/en.buradabiliyorum.com\/between-a-paradox-and-a-hard-place\/"},"modified":"2020-11-17T17:30:03","modified_gmt":"2020-11-17T14:30:03","slug":"between-a-paradox-and-a-hard-place","status":"publish","type":"post","link":"https:\/\/buradabiliyorum.com\/en\/between-a-paradox-and-a-hard-place\/","title":{"rendered":"#between a paradox and a hard place"},"content":{"rendered":"

“#between a paradox and a hard place<\/strong>”<\/p>\n

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\n Credit: CC0 Public Domain
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The situation in which the world is currently living is extraordinary in every sense of the word: since the outbreak of the COVID-19 pandemic, there have been over 53 million confirmed cases and more than 1.3 million people have died<\/a>. After a round of lockdowns in the spring and deconfinements in the summer, the much-feared “second wave” has emerged in many countries, plunging us again into the unknown.<\/p>\n

From a legal perspective, it is understandable and justifiable that in such times, civil liberties might be temporarily restricted through legal instruments that embody the legality and proportionality of the measure (legal authorization, proper authority in charge and duration in time or scope of the decision, reasonability of means), the respect of constitutional rights (privacy of users) together with mechanisms to provide public safeguards (data controllers, independent authorities or watchdogs).<\/p>\n

This article reflects on the measures that countries have taken to monitor their residents so as to effectively trace COVID-19 cases. The search for a balance between the expression of public policy and the respect of basic civil liberties is, traditionally, an essential question behind a complex legal situation.<\/p>\n

The temptation to mishandle the restriction of rights<\/b><\/p>\n

Certain nations have been sufficiently focused on contact tracing that methods have been used that would be highly criticised in Western countries. For example, in South Korea, authorities used location data from cell phones, credit-card transactions, and CCTV footage to identify potentially infected persons. As noted Jung Ki-suck<\/a>, the former director of the Centers for Disease Control and Prevention (CDC), “people [in South Korea] are OK with their privacy being infringed for the wider public interest.”<\/p>\n

China is another much-cited example: the country’s app<\/a>lications, which are mandatory, use facial recognition, biometric data, location tracking<\/a> and other data to generate health-status colour codes. An analysis by The New York Times<\/i> of one of the apps indicated that it appeared to share information with police authorities<\/a>. Even the basis on which the colour codes are assigned is unclear, and while the lack of transparency has been criticised, Chinese authorities are not known for their openness.
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On May 4 the Hungarian government adopted a decree, 179\/2020<\/a>, in which data protection and access to information rights were restricted during the “state of danger.” Exercise of essential rights under articles 15 to 22 of the European Union’s General<\/a> Data Protection Regulation (GDPR) \u2013 right of access, rectification, erasure, restriction of processing, etc. \u2013 were suspended. The decree also authorised the prime minister to rule on legislative matters without defining an end date. After pressure, the authorities finally lifted the restrictions<\/a> on June 16, the same day a complementary law gave the executive the power to restrict freedom of movement or assembly for six months.<\/p>\n

However, restrictions on data-protection rights should only be of legislative nature (issued by the parliaments), and not decided unilaterally by the executive branch (a decree). This legal nature of the restriction is protected by Article 52(1) of the Charter of Fundamental Rights of the European Union, article 8(2) of the European Convention of Human Rights, and, more recently, article 23 of the GDPR.<\/p>\n

Restrictions of certain rights, from a legal perspective need to be:<\/p>\n