Structural Analyzes of Article 18¹ of Civil Code of Georgia

Abstract

n modern internet age, demand of society on using the technology is growing, however, development of technology expands possibility of private interest infringement. Accordingly, legal grounds of personal data protection, especially, in the framework of relationships between private individuals should be studied. Structural analysis of Article 18 prima of Civil Code of Georgia (hereinafter the Code) is essential from this approach. Firstly, considering the aim of the research, the scope of the term ‘personal data’ and limits of its protection should be established, where does the interest of informing the society commence and end. From this approach, in order to define correspondence between national and European approaches, main essence of public and private interest conflict should be shown in accordance with European standards. Research established that personal data is one of the parts of private life. Moreover, personal information includes data of different form and content that are directly or indirectly connected to an identified or identifiable physical person. In order to avoid private interest infringement, personal data should be processed with strict protection of regulations stipulated by the law. The law has legal gap. Accordingly, it should be determined, how should private individual protect its own interest on personal data, while the law on Personal Data Protection sets forth measures that should be used during infringement mainly having public law nature. Research has revealed that Civil Code does not include sanctions that should be used during infringement and Georgian Civil legislation is not in compliance with European standards, as the law should be clear, precise, stipulate effective, corresponding and efficient sanctions. It should be noted that if the content of personal data is connected to illicit and faulty infringement of different private goods (respect, honor, private life secrecy etc.), victim is entitled to request compensation of relevant damages. In order to protect private interests, this gap could be filled with using analogy of Article 18 and interpretation of delict responsibility under Article 992 of the Code expended for purposes of solving this problem. Different regulation exists in relation to non-material damage compensation. According to Article 413.1 of the Code, events of non-material damage compensation is narrowed and issue should be considered in the limits of teleological reduction. Article 18 prima of the Code does not indicate on damage compensation for violating rules of personal data distribution. Accordingly, on legislation level, Article 18 prima of the Code does not compensate non-material damages. It is reasonable, that the following sentence - “person is entitled to receive damage compensation for non-material damage in case of violation private information or confidentiality” should be added to Article 18 prima of the Code. At this stage, legal burden of proof is complicated for the claimant, until there is no indication on such possibility in Civil Code. If faulty and impermissible exposure of personal data results in non-material damages, in order to satisfy the claim on its compensation, the victim should prove that issuing private information was determinant of infringement of any right protected under Article 18. Accordingly, if both facts will be confirmed, non-material damage may be compensated based on Article 18.6 of Code and generalization of Article 992.