HUN-2002-3-006

a) Hungary / b) Constitutional Court / c)  / d) 03-12-2002 / e) 65/2002 / f)  / g) Magyar Közlöny (Official Gazette), 2002/149 / h) .

Keywords of the Systematic Thesaurus:

03.16

General Principles - Proportionality.

03.18

General Principles - General interest.

05.03.32.01

Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.

Keywords of the alphabetical index:

Data, processing, control, right / Data, medical / Sexual habit.

Headnotes:

In accordance with Act LXIII of 1992 on the protection of personal data and the publication of public data, data concerning sexual habits constitute sensitive data. This means that the purposes of the processing of that data must be clearly outlined and defined, and the processing of such of data must be unavoidably necessary.

Summary:

The second sentence of Article 3.a of the Act XLVII of 1997 on the processing and protection of medical data (the Act) classifies in certain cases data concerning sexual habits as medical data. Article 4.1 of the Act enables medical staff to use this data for the sake of:

a.     the preservation of health,

b.     effective medical treatment,

c.     keeping track of medical conditions, and

d.     in the interest of public health and the country's epidemiological situation.

The processing of such data is not compulsory according to Article 12.1 of the Act; however, Article 13 makes it compulsory in certain cases.

The petitioner argued that the basic right to privacy and the protection of personal data set out in Article 59.1 of the Constitution were violated by the second sentence of Article 3.a of the Act.

The Constitutional Court found - after briefly reiterating its leading decisions in the field of data protection - that data concerning sexual habits constituted sensitive data, according to Act LXIII of 1992 on the protection of personal data and the publication of public data. That, in the opinion of the Constitutional Court, meant that the purposes of the processing of that data had to be clearly outlined and defined, and the processing of such data had to be unavoidably necessary.

Noting the purposes stated above of Article 4.1 of the Act, the Constitutional Court stated that the processing of data to serve the purposes (the medical treatment of the person in question) stated in a. to c. was not appropriate, as the effectiveness of medical treatment could be better served by the knowledge of data concerning the medical condition of the person in question than by the knowledge of data concerning his or her sexual habits. The public health and epidemiological interest stated in point d. of Article 4.1 may in theory justify the processing of sensitive data concerning sexual habits; however, the purpose of the processing of data has to be unambiguously and clearly outlined. The Constitutional Court stated that, in its opinion, not even those public interests met the requirements. Furthermore, under the Act, the processing of data concerning sexual habits for the purposes stated above is not only possible in relation to patients with sexual illnesses, but also in general.

According to the majority opinion of the Constitutional Court, the second sentence of the impugned Article 3.a of the Act provided for a definition that was broader than necessary for the processing of data concerning sexual habits. The processing of such data without a clearly defined purpose constitutes an unnecessary limitation of the basic right to the protection of personal data, and it is, therefore, unconstitutional. For this reason, the Constitutional Court struck down the sentence in question.

Supplementary information:

In a concurring opinion, Chief Justice Németh stated that in the majority decision the purposes constituting the unconstitutionality and listed in (a.-d.) of Article 4.1 of the Act are unambiguous, precise and the processing of data is adequately tied to a purpose. That being so, it should not have formed the basis for a declaration of unconstitutionality; however, the expression "sexual habits" in the second sentence of Article 3.1.a is ambiguous, can be interpreted in various ways, and, therefore, the resulting disproportion violates the right to the protection of privacy set out in Article 59 of the Constitution.

In a dissenting opinion, Justice Harmathy stated that he did not agree with the finding of unconstitutionality in the majority decision. In his opinion, the second sentence of Article 3.a of the Act providing that in certain cases the data concerning sexual habits constituted medical data was not, in itself, directly and constitutionally related to Article 59.1 of the Constitution protecting privacy. However, Article 13.a of the Act was relevant from the point of view of the violation of privacy, which provides for the cases where the medical data of a patient - and with it and under Article 3.a of the Act his or her privacy concerning his or her sexual habits - had to be handled. In Harmathy's opinion, among the cases listed in Article 13 in the cases of f. concerning petty offences and administrative authority procedures, the obligation as to the processing of private information concerning sexual habits as medical data constituted an unconstitutional restriction of the fundamental right to privacy. For that reason, the Constitutional Court should have extended its examination to this provision and, in that respect, it should have made a declaration of unconstitutionality. Furthermore, Justice Harmathy drew attention to the difference between the protection of privacy and the protection of personal data set out in Article 59.1 of the Constitution, and cited the European Convention on Human Rights and several judgments of the European Court of Human Rights in support.

In a dissenting opinion, Justice Vasadi stated that she did not agree with the finding of unconstitutionality. In her opinion the information concerning sexual habits is sensitive data according to the Act, and in this way is entitled to protection similar to that of any other sensitive data. The purposes of the processing of data are clearly defined and legally valid in the Act. The revealing of such information is voluntary, and the petition did not challenge Article 13 by also showing cases where the revealing of such information was compulsory, and not even the majority decision found it justified to extend the scope of constitutional review to cover it (see the dissenting opinion of J Harmathy). In that respect, the petition against the second sentence of Article 3.a of the Act should have been rejected.

Cross-references:

-     Decision no. 29/1994 of 20.05.1994, Bulletin 1994/2 [HUN-1994-2-011].

Languages:

Hungarian.