Data Protection Laws and Freedom of Expression: Latvia 
Constitutional/Primary Law Background - see also ECHR and EU Charter
Article 100 of the contemporary Latvian Constitution (1922 reinstated 1991 and as revised 2016) prohibits censorship and guarantees freedom of expression including the right to freely receive, keep and distribute information and express views. Article 113 separately recognizes the freedom of scientific research, artistic and other creative activity. Whilst there is no constitutional right to data protection as such, article 96 provides for the inviolability of private life, home and correspondence.
The first relevant protection of freedom to express and disseminate thoughts (but only within the limits prescribed by law) as well as inviolability of domicile (but again subject to searches as provided by law) may be traced to articles 37 and 33 of the Fundamental Laws of the Russian Empire 1906. The original Latvia Constitution of 1922 did not expressly include these rights and this was likewise the case when it was first reinstated in the early 1990s. The current rights cited above were introduced as a result of a new fundamental rights chapter (Chapter 8) being inserted into the Constitution in 1998.
First-Generation Statutory Law
| Latvia did not adopt any data protection statute during the first-generation period. |
Second-Generation Statutory Law
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Latvia initially passed the Data Protection Act with a view to implementing Directive 95/46 on 23 March 2000. The Act was subsequently amended several times. Latvia joined the EU on 1 May 2004.
Special Expression Derogation
Article 5 of the Latvian Personal Data Protection Act set out a derogation for journalistic purposes in accordance with the Law on the Press and other Mass Media and also artistic or literary expression, all subject to such activity not being prescribed by other law. This established an exemption from the legitimating grounds for processing, sensitive data rules and proactive transparency rules but qualified this by stating that in applying these exemptions ‘the rights of persons to the inviolability of private life and freedom of expression shall be observed’. The data quality principles remained applicable without restriction and there was no special provision related to the international data transfer conditions. The law also set out an exemption from the requirement to notify processing with the DPA (art. 21(2)(3)) but not health data or criminal-related data were processing, where an international data transfer was foreseen or (from 2006) where data was used provide financial services, market or public opinion research, commercial recruitment services, or lotteries (art. 21(3)). Oversight by both the DPA and the courts were not explicitly qualified.
Broad Expression Derogation
No specific provision was adopted.
Personal Exemption
Latvia established an exemption for personal or household and family purposes but subjected this to the condition that such data were not disclosed to other persons (art. 3(3)).
Knowledge Facilitation Framework
Necessary processing of personal data for scientific and statistical research was exempted from the compatibility principle so long as this did not violate the rights of the data subject (art. 10(2)). From 2002 processing for the establishment of the Latvian National Archives was exempted from the time limitation and accuracy/rectification principles (art. 10(3)). An exemption was provided from the reactive transparency rules (subject access) and the rights to rectification and erasure where processed data was used exclusively for scientific or statistical research and would not serve as a basis for decisions regarding the affected data subject and (from 2002) similarly for the Latvian National Archives (art. 17). The sensitive data rules were only exempted from application where processing either took place for the establishment the Latvian National Archive Foundation and was performed by the State archives or institutions of the state or was for statistical research carried out by the Central Statistics Bureau (art. 11). From 2009, an exemption from the requirement to notify processing with the DPA was provided for processing carried out for scientific, statistical and genealogical research purposes (art. 21(2)(8)) and, from 2007 with the ‘Law on Archives’, for archiving purposes (art. 21(2)(4)). No derogation was provided from the proactive direct transparency rule. Unlike in Directive 95/46, the disproportionate effort (and impossibility) limitation on the proactive transparency rule when information was not collected direct from the data subject was limited to processing for scientific, historical or statistical research or the establishment of the Latvian National Archive Foundation (art. 9(3)(2)).
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Legislative Debates
Preliminary Remarks
The Personal Data Protection Act 2000 was passed without any relevant debates in any of the three parliamentary readings. Debates did, however, take place in the preparatory commissions.
An amendment to the Personal Data Protection Act was proposed by the Cabinet of Ministers on 24 January 2002. It inter alia aimed to widen the permitted use of sensitive data (in national archives, for social and health policy). The parliamentary debates thereon did, however, not relate to freedom of expression.[1]
On 30 November 2006, the Judicial Commission proposed several amendments to the Personal Data Protection Act. The aim of these amendments was to clarify the procedures for data processing and registration as well as to specify particular Acts which had proven to be problematic in the implementation of the Data Protection Act, and also specify the independent status of the DPA (the State Data Inspectorate). On 12 June 2009, minor amendments were passed after the second reading regarding the registration procedure for anyone wishing to undertake personal data processing and this had some impact on journalism (see below).
Special Expression Derogation
In the second parliamentary reading of the Bill in 2000, a clause was added to Article 4 upon recommendation of the Judicial Commission providing that data collection for the purposes of journalism, literature and art was exempted from a number of the general rules of data protection including the proactive transparency rule applicable when data are collected from the subject, and rules that described the duties of the system manager in maintaining the security of data.[2] For the third reading another clause was added, which emphasized the former clause had to be implemented keeping in mind both the right to privacy and the right to freedom of speech.[3] The need for a clause in this area was also emphasized in the letter from one of the international advisors, namely, Graham Sutton from the United Kingdom’s Home Office and Department for Constitutional Affairs.[4]
The additional clause was raised against during the session of the Judicial Commission. Naglis MP, a representative of the Ministry of Transport who also present in the session, stated that there had been practical difficulties when implementing such a clause in Estonia.[5] Somebody could be gathering data (and invoke this clause) and not be a journalist. The issue was also partly dealt with in another law, namely, “On Press and other means of Mass Information”. He therefore argued that the clause should not be included. S. Plūmiņa MP supported this, explaining that the EU had asked that this clause be included in both Latvia and Estonia even though Estonian representatives had explained that relevant provisions existed in their own specific laws about the Press. L. Muciņš MP stated that there was a clause in this area in the German data protection law. Dz. Rasnačs MP argued that the law “On Press and other means of Mass Information” was outdated and there should not be two laws that should be applied jointly to this one question. S. Plūmiņa added that in the EU Directive there was a provision stating that the two rights – right to privacy and freedom of information – need to be balanced against each other. L. Muciņš supported the addition of this clause, arguing that it was necessary to state the principle of balance between these two rights and that the clause should be seen as an “umbrella” provision. The Commission eventually approved of this. After the second reading the new clause which had been added to Article 4 was turned into Article 5.
In the 2006 amendment, after the first reading the Judicial Commission qualified Article 5 on journalistic, literary and artistic exceptions by adding that the exception applies to journalistic needs in compliance with the law “On Press and other means of Mass Information”.[6]
With the 2009 Amendment, exemption from registration for journalism was restricted by adding it does not apply if the data are to be transferred to a country outside EU/EEA, if the data are used for the purposes of “financial services, market or public opinion research, commercial recruitment services, or lotteries”.[7]
Broad Expression Derogation
No parliamentary debates.
Personal Exemption
The exemption was initially drafted to apply to all physical and legal persons “and their unions” if the data is used for “internal purposes” and not publicised to other parties.[8] This was amended following the proposal of the Judicial Commission to apply only to physical persons and only if the data was used for “personal or household and family purposes”.[9] The express requirement that data not be disclosed to third parties was maintained.
Knowledge Facilitation Framework
After the first reading preceding the adoption of the 2002 Amendment, the Judicial Commission and Judicial Bureau amended the core exemptions to historical and scientific research to inter alia include provisions on Latvia National Archive records.[10] In particular, the duty to inform the data subject where data had not been gathered from then and this duty would constitute a disproportionate or impossible effort was lifted in the case of the National Archives (Article 9) and the use of sensitive data was allowed for the National Archives of Latvia and also the Central Statistical Bureau of Latvia (Article 11). In the case of the National Archives, exemptions from the time limitation and accuracy/rectification principles were established (Article 10) and data subject right to reactive transparency and to rectification and erasure were curtailed (Article 17). However, no substantive debates took place.
With the 2009 Amendment, it was added that there is no need to notify the DPA if personal data were collected for “scientific, statistical and genealogical research purposes”.[11]
Third-Generation Statutory Law
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On 20 June 2018, the Latvian Parliament a third-generation Data Protection Act which inter alia implemented the GDPR.
Special Expression Derogation
The law sets out a general exemption for processing for journalistic purposes as well as the purposes of academic, artistic and literary expression. This is subject to (i) compliance with the provisions being incompatible or preventing the exercise of freedom of expression and information, and (ii) processing being in compliance with the rights of person to private life and any interests of the data subject insofar as these override the public interest. In addition, as regards journalism only, it was specified that (iii) processing taking place for the purpose of publishing information which affects the public interest (art. 32). This special expression provision did explicitly establish its priority over the Knowledge Facilitation Framework.
Broad Expression Derogation
No specific provision was adopted.
Personal Exemption – see GDPR, art. 2(2)(c)
Knowledge Facilitation Framework – see also GPDR, art. 5(1)(b) (compatibility), art. 5(1)(e) (time limits) and art. 89(1) (appropriate safeguards)
Where data are processed for statistical purposes, the rights of the data subject specified in arts. 15, 16, 18 and 21 GDPR are not applied in so far as they may prevent or significantly impede the achievement of the specific intentions and the derogations are necessary to reach the objective (art. 29). The exact same exemptions are set out as regards processing for scientific or historical research purposes (art 31). Articles 18-21 of the GDPR are excluded on same basis where data are processed for archival purposes in the public interest in order to create, accumulate, evaluate, maintain the use of ‘national documentary heritage’. It is stated that the data subject may exercise their rights under art. 15 and 16 GDPR in line with archiving regulations. However, arts. 18-21 GDPR are exempted from application (art. 30). Latvia has failed to set out a sui generis knowledge facilitation vires for processing sensitive data.
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Legislative Debates
No relevant debates appear to have taken place.[12]
[1] Plenary Session for 1134/Lp7 (31.01.2002) http://helios-web.saeima.lv/bin/lasa?LP1134_0 (last accessed 11 December 2020).
[2] Suggestions for Second Reading for 50/Lp7 (03.02.2000) http://helios-web.saeima.lv/bin/lasa?LP0050_2 (last accessed 11 December 2020).
[3] Suggestions for Third Reading for 50/Lp7 (23.03.2000) http://helios-web.saeima.lv/bin/lasa?LP0050_3 (last accessed 11 December 2020).
[4] Notes on the Data Protection Bill in Latvia (Strasbourg, 18.01.1999) Latvian Saeima Archive.
[5] Latvian Republic’s 7th Saiema’s Judicial Commission’s Session nr.129 (15.03.2000), Latvian Saeima Archive.
[6] Suggestions for Second Reading for 73/Lp9 (25.01.2007) http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/308AF88944932D32C2257268002B110C?OpenDocument (last accessed 11 December 2020).
[7] Suggestions for Second Reading for 1265/Lp9 (21.02.2008) http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/0439771295B11AABC22575D2003BA859?OpenDocument (last accessed 11 December 2020).
[8] Initial Draft for First Reading for 50/Lp7 (03.12.1998) http://helios-web.saeima.lv/bin/lasa?LP0050_1 (last accessed 11 Decemeber 2020).
[9] Suggestions for Second Reading for 50/Lp7 (03.02.2000) http://helios-web.saeima.lv/bin/lasa?LP0050_2 (last accessed 11 December 2020
[10] Suggestions for Second Reading for 1134/Lp7 (14.03.2002) http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/550C7CB0D0AABA02C225728A004BBAFF?OpenDocument
(last accessed 11 December 2020).
[11] Suggestions for Second Reading for 1265/Lp9, 21.02.2008, http://titania.saeima.lv/LIVS/SaeimaLIVS.nsf/0/0439771295B11AABC22575D2003BA859?OpenDocument (Accessed 26 March 2021).
[12] See ‘11th Sitting of the 12 Saeima of the Republic of Latvia on March 22, 2018’ (22 March 2018) https://www.saeima.lv/lv/transcripts/view/474 (last accessed 12 February 2021); ‘10th Sitting of the Spring Session of the Saeima of the Republic of Latvia on June 7, 2018’ (7 June 2018) https://www.saeima.lv/lv/-transcripts/view/486 (last accessed 12 February 2021); ‘13th Sitting of the Spring Session of the Saeima of the Republic of Latvia on June 21, 2018’ (21 June 2018) https://www.saeima.lv/lv/transcripts/view/490 (last accessed 12 February 2021).
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