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.

Austria

Concerning Art 85 para 2 GDPR:

The implementation of § 9 para 1 DSG seems to be in conflict with the opening clause of Article 85 para 2 GDPR, leading to legal uncertainty regarding processing activities for journalistic purposes. Article 85 para 2 authorises member states to stipulate exceptions and derogations only if they are necessary (to reconcile the right to the protection of personal data with the freedom of expression and information), whereas the Austrian legislator stipulates a complete exception, exceeding his authority.

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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