Exploring the Expansive yet Diverse Interpretative Stance of European Data Protection Authorities as Regards Freedom of Expression on the ʻNew Mediaʼ

A revised version of this paper was published in 40 European Law Review 531 (2015).

University of Cambridge Faculty of Law Research Paper No. 65/2014.

33 Pages Posted: 5 Nov 2014 Last revised: 18 Aug 2015

See all articles by David Erdos

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: December 1, 2014

Abstract

EU Directive 95/46 mandates a strong interaction between data protection and public freedom of expression, an issue which must be addressed by Data Protection Authorities (DPAs) across an increasingly variegated and ubiquitous ʻnew mediaʼ space. A survey probing understandings of the law as regards a range of hypothetical ʻnew mediaʼ scenarios was sent to all European Economic Area DPAs. The survey results demonstrate that DPAs have generally adopted an expansive interpretation of the role of data protection norms here which is sometimes in conflict with Court of Justice jurisprudence. Not only was there always a consensus that data protection law was applicable, but only as regards the media archive scenario did a majority of DPAs consider the special journalistic, literary and artistic purposes provision (Art. 9) applicable. In a number of scenarios linked to individual self-expression (which concerned an amateur blogger, rating website and individual social networker) many DPAs did acknowledge that default data protection rules had to be interpreted with regard for freedom of expression. In contrast, as regards the social networking site, search engine indexing and street mapping service examples, there was a broad consensus that these provisions applied in full. At the same time, there was considerable diversity of response which was not directly related to divergent national transpositions of the Directive but was associated with differences in the scope of the special purposes derogation in national law. It is argued that the results point to the need for any legislative reform resulting from a new Data Protection Regulation to be coupled with cultural engagement with DPAs in order to ensure a more harmonized, legally certain and balanced protection of rights online.

Keywords: Blogging, Data Protection, Directive 95/46, Data Protection Authorities, Facebook, Google Search Engine, Google Spain, Satamedia, Street View, Information Actor, Information Context, Information Focus, Journalism, Lindqvist, Media, New Media, News Archive, Social Networking, Rating Websites

Suggested Citation

Erdos, David, Exploring the Expansive yet Diverse Interpretative Stance of European Data Protection Authorities as Regards Freedom of Expression on the ʻNew Mediaʼ (December 1, 2014). A revised version of this paper was published in 40 European Law Review 531 (2015).; University of Cambridge Faculty of Law Research Paper No. 65/2014.. Available at SSRN: https://ssrn.com/abstract=2518528 or http://dx.doi.org/10.2139/ssrn.2518528

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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