TI Georgia on State Agency’s demands to verify the credibility of public polls

In the run-up to October 28 presidential elections, the Georgian National Communications Commission (GNCC) has called on the broadcasters to verify the credibility of public opinion polls that they commission, warning the media outlets that, otherwise, they would face punitive sanctions. This involves the risk of violating personal data protection and establishing self-censorship in the country, Transparency International Georgia NGO says.

In August 2018, the GNCC sent a letter to the broadcasters, reminding them in a preventive manner about a whole range of obligations, including the regulations concerning public opinion polls. It mainly addressed the media outlets which are planning to commission public opinion polls to relevant organizations during the pre-election period.

“According to the letter, the broadcasters which can verify the credibility of the survey they commissioned, should pay special attention to the “requirements envisaged by Sub-Paragraphs “a” – “e” of Paragraph 11 of Article 51 of the Election Code”. However, the provisions indicated by the GNCC define what kind of requirements must be satisfied by a poll itself, including about its credibility, rather than an obligation of commissioning TV channels to verify the data, as stated by the GNCC,” TI says.

This issue has been topical since 2016 when the GNCC, based on the application submitted by journalist Shalva Ramishvili, started examining the lawfulness of the results of a public opinion survey commissioned by Rustavi 2 and conducted by GFK Customs Research LLC. The GNCC has not decided on this issue to this day.

“Last year, the GNCC itself submitted to the parliament a legislative proposal with the aim of making media outlets legally obliged to check the results of conducted polls before revealing them to the public. The initiative was to be discussed in the format of a working group with the aim of a comprehensive elaboration,” the NGO reports.

The GNCC has not issued a public explanation of the specific procedure for verifying poll credibility. However, the written communication between the GNCC and the Personal Data Protection Inspector conducted in November 2016 reveals that the regulatory commission considered a possibility of providing third parties, including the GNCC itself, with personal data and information about political views of poll participants to verify poll credibility, the NGO says.

Specifically, the GNCC wanted to know whether the following actions would be lawful:

Requesting personally identifiable information about individuals who participated in a poll;

Requesting personal data of special category (questionnaires containing information about political views);

Processing, including studying, contacting respondents and verifying the questionnaire data with them;

Providing the persons hired by the GNCC for conducting an expert examination of the public opinion poll, should the need arise, with the requested information.

The Personal Data Protection Inspector responded that the commission has the grounds to process personal data, but there are no grounds to process special category data, that is to say, information related to political views, and that making this information public or making it available to a third party without the consent of an interested person is inadmissible.

The Inspector, however, also said that, since the Election Code, as an organic law, has a higher hierarchical status than the Law of Georgia on Personal Data Protection, the normative act of higher status should be given preference. This way, the Personal Data Protection Inspector essentially confirmed to the GNCC that it has the right to request the information about the identity and political views of public opinion poll participants. “The Inspector did not consider international experience, including the Council of Europe recommendations, where such practice does not exist,” TI says.

The NGO reports that the GNCC’s wish to oblige the broadcasters to verify the credibility of public opinion surveys and then to control whether the broadcasters are acting in accordance with the law:

Poses a threat to the commissioning of public opinion polls by the broadcasters and then publicizing their results;

Blatantly violates the secrecy of special category personal data, namely, the information concerning political views;

Creates an environment of self-censorship for public opinion poll respondents;

Creates a threat that the confidentiality of answers given by respondents will not be protected and that, in the future, the citizens would not participate in public opinion polls at all or would refrain from answering politically sensitive questions.

Transparency International Georgia called on the Georgian National Communications Commission to consider European experience and refrain from imposing disproportionate demands on the media, which could pose a threat to publicizing the results of public opinion polls during the pre-election period and restrict the possibility for the population to familiarize itself with the issues that generate high public interest.