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Article 85
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Processing and freedom of expression and information

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Key words related to article 85

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(153) Member States law should reconcile the rules governing freedom of expression and information, including journalistic, academic, artistic and or literary expression with the right to the protection of personal data pursuant to this Regulation. The processing of personal data solely for journalistic purposes, or for the purposes of academic, artistic or literary expression should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information, as enshrined in Article 11 of the Charter. This should apply in particular to the processing of personal data in the audiovisual field and in news archives and press libraries. Therefore, Member States should adopt legislative measures which lay down the exemptions and derogations necessary for the purpose of balancing those fundamental rights. Member States should adopt such exemptions and derogations on general principles, the rights of the data subject, the controller and the processor, the transfer of personal data to third countries or international organisations, the independent supervisory authorities, cooperation and consistency, and specific data-processing situations. Where such exemptions or derogations differ from one Member State to another, the law of the Member State to which the controller is subject should apply. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly.

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(37)  Whereas the processing of personal data for purposes of journalism or for purposes of literary of artistic expression, in particular in the audiovisual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas Member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, measures on the transfer of data to third countries and the power of the supervisory authority; whereas this should not, however, lead Member States to lay down exemptions from the measures to ensure security of processing; whereas at least the supervisory authority responsible for this sector should also be provided with certain ex-post powers, e.g. to publish a regular report or to refer matters to the judicial authorities;

The GDPR

Article 85 of the Regulation also provides that the Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the freedom of expression and information.

This specifically includes processing of data for journalistic purposes but also for artistic or literary purposes as well as - and this is doubtlessly the innovation element - for academic expression purposes.

The provision “limits” the margin of reconciliation to the provisions of Chapter II (Principles), of Chapter III (Rights of the data subjects), of Chapter IV (Controller and processor), of Chapter V (Transfer of personal data to third countries or international organizations), of Chapter VI (Independent supervisory authorities), of Chapter VII (Cooperation and consistency) and of Chapter IX (Specific processing situations, i.e., this Chapter).

The final version adds a third paragraph to Article 85, pursuant to which each Member State shall notify the Commission of the measures it adopts under paragraph 1, no later than 2 years after the publication of the Regulation, and without delay of any subsequent amendment affecting them.

The Directive

The Directive already allowed Member States to provide for exemptions or derogations for personal data processing carried out solely for journalistic, artistic or literary expression, from the general conditions of lawfulness of processing (Chapter II) , from the conditions of data transfer to third countries (Chapter IV) and from the competence of the supervisory authorities (Chapter VI) only insofar as they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

Potential issues

By deciding to leave to the Member States the possibility to provide for specific derogations in their national laws, the Regulation refuses to unify the appropriate rules to ensure the difficult balance between the freedoms in question and data protection.

The Regulation is perfectly aware of this, providing in its recital 153 that "Where such exemptions or derogations differ from one Member State to another, the law of the Member State to which the controller is subject should apply". It is true that this pursuit may differ from one state to another depending on various factors (cultural, sociological, etc.) and in any event, some harmonization is guaranteed by the rules contained in the Charter of Fundamental Rights of the Union as well as in the European Convention on Human Rights. The control of the Courts of the European Union (Luxembourg) and of the Human Rights (Strasbourg) will remain essential to this matter.

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Summary

European Union

European Union

CJEU caselaw

C-73/07 (16 December 2008) - Satakunnan Markkinapörssi and Satamedia

1.      Article 3(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data is to be interpreted as meaning that an activity in which data on the earned and unearned income and the assets of natural persons are:

–        collected from documents in the public domain held by the tax authorities and processed for publication,

–        published alphabetically in printed form by income bracket and municipality in the form of comprehensive lists,

–        transferred onward on CD-ROM to be used for commercial purposes, and

–        processed for the purposes of a text-messaging service whereby mobile telephone users can, by sending a text message containing details of an individual’s name and municipality of residence to a given number, receive in reply information concerning the earned and unearned income and assets of that person,

must be considered as the ‘processing of personal data’ within the meaning of that provision.

2.      Article 9 of Directive 95/46 is to be interpreted as meaning that the activities referred to at points (a) to (d) of the first question, relating to data from documents which are in the public domain under national legislation, must be considered as activities involving the processing of personal data carried out ‘solely for journalistic purposes’, within the meaning of that provision, if the sole object of those activities is the disclosure to the public of information, opinions or ideas. Whether that is the case is a matter for the national court to determine.

3.      Activities involving the processing of personal data such as those referred to at points (c) and (d) of the first question and relating to personal data files which contain solely, and in unaltered form, material that has already been published in the media, fall within the scope of application of Directive 95/46.

Opinion of Advocate general

Judgment of the Court

C-345/17 (14 February 2019) - Buivids

1.      Article 3 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the recording of a video of police officers in a police station, while a statement is being made, and the publication of that video on a video website, on which users can send, watch and share videos, are matters which come within the scope of that directive.

2.      Article 9 of Directive 95/46 must be interpreted as meaning that factual circumstances such as those of the case in the main proceedings, that is to say, the video recording of police officers in a police station, while a statement is being made, and the publication of that recorded video on a video website, on which users can send, watch and share videos, may constitute a processing of personal data solely for journalistic purposes, within the meaning of that provision, in so far as it is apparent from that video that the sole object of that recording and publication thereof is the disclosure of information, opinions or ideas to the public, this being a matter which it is for the referring court to determine.

Opinion of Advocate general

Judgment of the Court

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Regulation
1e 2e

Art. 85

1.   Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.

2.   For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.

3.   Each Member State shall notify to the Commission the provisions of its law which it has adopted pursuant to paragraph 2 and, without delay, any subsequent amendment law or amendment affecting them.
1st proposal close

Art. 80

1. Member States shall provide for exemptions or derogations from the provisions on the general principles in Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, on the transfer of personal data to third countries and international organisations in Chapter V, the independent supervisory authorities in Chapter VI and on co-operation and consistency in Chapter VII for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression.

2. Each Member State shall notify to the Commission those provisions of its law which it has adopted pursuant to paragraph 1 by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment law or amendment affecting them.
2nd proposal close

Art. 80

1. The national law of the Member State shall (…) reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including the processing of personal data for journalistic purposes and the purposes of academic, artistic or literary expression.

2. For the processing of personal data carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from the provisions in Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organizations), Chapter VI (independent supervisory authorities), Chapter VII (co-operation and consistency) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information (…).
Directive close

Art. 9

Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.
Germany
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Section 41
Collection, processing and use of personal data by the media

(1) The Länder are to ensure in their legislation that regulations corresponding to the provisions of Sections 5, 9 and 38a of this Act, including an appurtenant regulation on liability in accordance with Section 7 of this Act, shall apply to the collection, processing and use of personal data by enterprises or auxiliary enterprises in the press exclusively for their own journalistic-editorial or literary purposes.

(2) If journalistic-editorial processing or use of personal data by Deutsche Welle leads to the publication of counter-statements by the data subject, such counter-statements shall be combined with the stored data and preserved for the same period as the data themselves.

(3) If the privacy of a person is impaired by reporting by Deutsche Welle, he/she may request information on the stored personal data on which the reporting was based. Such information may be refused, after considering the legitimate interests of the parties concerned, in so far as

1.  the data enable conclusions to be drawn as to the persons who are or have been professionally involved in a journalistic capacity in the preparation, production or dissemination of broadcasts,

2.  the data enable conclusions to be drawn as to the supplier or source of contributions, documents and communications for the editorial part,

3.  disclosure of the data obtained by research or other means would compromise Deutsche Welle's journalistic function by divulging its information resources.

The data subject may request that incorrect data be corrected.

(4) In all other respects, Sections 5, 7, 9 and 38a of this Act shall apply to Deutsche Welle. Instead of Sections 24 to 26 of this Act, Section 42 shall apply even where administrative matters are concerned.

Section 42
Data protection official of Deutsche Welle

(1) Deutsche Welle shall appoint a data protection official, who shall take the place of the Federal Commissioner for Data Protection and Freedom of Information. The data protection official shall be appointed by the board of administration for a term of four years upon nomination by the director-general; reappointments shall be admissible. The office of data protection official may be exercised alongside other duties within the broadcasting corporation.

(2) The data protection official shall monitor compliance with the provisions of this Act and with other provisions concerning data protection. He/she shall be independent in the exercise of this office and shall be subject to the law only. In all other respects he/she shall be subject to the official and legal authority of the board of administration.

(3) Anyone may appeal to the data protection official in accordance with Section 21 first sentence of this Act.

(4) The data protection official shall submit an activity report to the organs of Deutsche Welle every two years, beginning on 1 January 1994. In addition he/she shall submit special reports pursuant to a decision by an organ of Deutsche Welle. The data protection official shall forward the activity reports to the Federal Commissioner for Data Protection and Freedom of Information as well.

(5) Deutsche Welle shall make further arrangements for its area of activity in accordance with Sections 23 to 26 of this Act. Sections 4f and 4g of this Act shall remain unaffected.
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