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Confused? Analysing the Scope of Freedom of Speech Protection vis-à-vis European Data Protection

37 Pages Posted: 29 Jul 2012 Last revised: 10 Oct 2014

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: July 28, 2012

Abstract

This paper analyses the qualified derogations under the EU Data Protection (DP) framework made available for activities which are solely journalistic, literary or artistic (Directive 95/46/EC, Article 9). It is found that, notwithstanding the apparent breath of the European Court of Justice’s 2008 Satamedia judgment, the scope of this provision remains highly opaque and confused. This has led courts and regulators alike to find this ‘special purposes’ Article inapplicable when large databases of information are disseminated, when data is communicated to essentially privatized individuals, even if indeterminate in number, and when the processing includes a purpose other than journalism, literature and art. Since Member States have almost exclusively relied on this provision to reconcile Data Protection (DP) and free speech, a wide variety of expressive activity, including rating websites, mapping services, search engines, academic research, socio-political speech and social networking, are subject to onerous standards in the general data protection (DP) scheme. The ‘special purposes’ provision in the proposed European Data Protection Regulation (COM (2012) 11 Final) must be revised so as to clearly and explicitly protect all activities orientated to disseminating information, opinions or ideas for the benefit of the public collectively. In addition, Member States should deploy more limited derogations available in the interests of the ‘rights and freedoms of others’ to protect activities which merely, but importantly, facilitate public expression (for example, search engines) or which promote individual self-expression (for example, social networking). Nevertheless, to properly balance the competing values in this area, it is essential that such an expansion be coupled with measures specifying in a more unambiguous fashion the requirement that all derogations be truly proportionate in relation to the various rights and interests involved.

Keywords: freedom of expression, journalism, internet, data protection, privacy, search engines, social networking, blogging, research, Web 2.0

Suggested Citation

Erdos, David, Confused? Analysing the Scope of Freedom of Speech Protection vis-à-vis European Data Protection (July 28, 2012). Oxford Legal Studies Research Paper No.48/2012. Available at SSRN: https://ssrn.com/abstract=2119187 or http://dx.doi.org/10.2139/ssrn.2119187

David Erdos (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-o-erdos/5972

Trinity Hall ( email )

University of Cambridge
Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

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