Exploring the Expansive yet Diverse Interpretative Stance of European Data Protection Authorities as Regards Freedom of Expression on the ʻNew Mediaʼ
Final version of this pre-print published as 7. “Data Protection Confronts Freedom of Expression on the ʻNew Mediaʼ Internet: The Stance of European Regulatory Authorities”, European Law Review, Vol. 40 (4), pp. 531-562 (2015).
33 Pages Posted: 5 Nov 2014 Last revised: 5 May 2020
Date Written: December 1, 2014
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
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