European Regulatory Interpretation of the Interface between Data Protection and Journalistic Freedom: An Incomplete and Imperfect Balancing Act?

A revised version of this paper is in Public Law (2016 Forthcoming)

University of Cambridge Faculty of Law Research Paper No. 61/2015

36 Pages Posted: 30 Oct 2015 Last revised: 9 Sep 2016

See all articles by David Erdos

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: October 29, 2015

Abstract

Directive 95/46 required European Economic Area Member States to ensure a careful balancing between the inherently conflicting values of data protection and journalistic freedom of expression. Unfortunately, however, this was often not achieved during the transposition of the Directive into local law. At the same time, both Directive 95/46 and the Art. 7 of the EU Charter mandated Member States to set up supervisory Data Protection Authorities (DPAs) which in practice dominate the data protection landscape. In the light of this, EEA DPAs were surveyed on their understanding of the right to subject access and the practice of undercover political journalism, with the responses then compared to provisions in local data protection law. The results demonstrated that DPAs do seek a balance in this area even against contrary statute. Nevertheless, the balancing achieved often remains incomplete, normatively contestable, opaque and precarious. It is argued that, following the likely replacement of Directive 95/46 with a new Regulation, these challenges must be tackled through a combination of both legislative and regulatory action.

Keywords: Data Protection, Direct Effect, Directive 95/46, European Harmonization, EU Charter, Freedom of Expression, General Data Protection Regulation, Media Freedom, Media Regulation, Privacy, Subject Access, Undercover Journalism

Suggested Citation

Erdos, David, European Regulatory Interpretation of the Interface between Data Protection and Journalistic Freedom: An Incomplete and Imperfect Balancing Act? (October 29, 2015). A revised version of this paper is in Public Law (2016 Forthcoming); University of Cambridge Faculty of Law Research Paper No. 61/2015. Available at SSRN: https://ssrn.com/abstract=2683471 or http://dx.doi.org/10.2139/ssrn.2683471

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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