From the Scylla of Restriction to the Charybdis of License? Exploring the Present and Future Scope of the ʻSpecial Purposesʼ Freedom of Expression Shield in European Data Protection

Abstract

European data protection sits in a relationship of profound tension with public freedom of expression. Although Directive 95/46 does include a special purposes provision requiring that Member States set out qualified shields for processing ‘carried out solely for journalistic purposes or the purposes of artistic or literary expression’, its scope is both too opaque and too restrictive to provide for a general reconciliation of values in this area. As vividly highlighted by the recent Google Spain decision, these problems were only partially resolved in the EU Court of Justice’s Satamedia judgment. Current suggestions that this provision be amended so as to require Member States to effect a reconciliation between data protection and freedom of expression itself run the theoretical risk of expanding the scope of this highly discretionary clause into one of universal application. However, since this would dramatically conflict with the core harmonizing aim of European data protection reform, such a change would almost certainly be interpreted much more restrictively, thereby fuelling the confusion which exists in this area. A two-pronged, layered approach may offer a better way forward. Firstly, the special purposes provision should be expanded to clearly protect all activities orientated towards disclosing information, opinion or ideas for the benefit of the public collectively. Secondly, Member States should also be obliged to effect a broader but more stringent reconciliation of data protection with the right to public freedom of expression under the law’s general derogation provisions.

Keywords: Blogging, Data Protection, Directive 95/46, Eniro, Freedom of Expression, Free Speech, Google Spain, Google Street View, Hitta.se, Internet, Journalism, Kordowski, Lindqvist, Note2be.com, Media, Privacy, Political Campaigning, Satamedia, Search Engines, Street Mapping, Web 2.0