Fundamentally Off Balance: European Union Data Protection Law and Media Expression
A revised version of this paper will be in International and Comparative Law Quarterly (2015, Forthcoming)
43 Pages Posted: 25 Jul 2014 Last revised: 5 May 2020
Date Written: July 25, 2014
The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.
Keywords: Data Protection, Directive 95/46, European integration, Freedom of Expression, Free Speech, Human Rights, Journalism, Media
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