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)
36 Pages Posted: 30 Oct 2015 Last revised: 9 Sep 2016
Date Written: October 29, 2015
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
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