Freedom of Expression Turned on its Head? Academic Social Research and Journalism in the European Union's Privacy Framework
Pre-print of article published in Public Law (January 2013, pp. 52-73)
36 Pages Posted: 16 Sep 2011 Last revised: 7 Sep 2016
Date Written: September 15, 2011
This article argues that mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.
Keywords: Journalism, Media, Freedom of Expression, Privacy, Data Protection, Art, Research, European Convention, Academic Freedom, Human Rights, Information Management
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