Joanne van Eenennaam
GDPR, IT-law, Corporate law, disputes and litigation
19 February 2019
Armin Karimi |
- Privacy
- IT law
- Case law
The GDPR and freedom of expression: can everyone be a journalist?
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Every day, people share large amounts of information on the internet. Websites such as Youtube and Blogger make this accessible in an easy way. How does this relate to the General Data Protection Regulation?
Mr Buivids' video recording when visiting a police station in Latvia
In a recent case before the Court of Justice of the European Union (ECJ), mr. Buivids had made a video recording during his visit to a Latvian police station. He was there to be questioned about a fine that was imposed on him. He subsequently posted this video, on which police officers are recognizable, on Youtube.
The Latvian data protection authority declared this to be in violation of the Latvian data protection act, since Buivids had not informed the police officers about the video recording. Buivids claimed that he merely wished to disclose malpractice by the Latvian police. The Latvian court where Buivids brought an action to against the authority’s decision, decided to ask questions to the ECJ regarding the applicability of the GDPR.
Exceptions
The GDPR does not apply to the processing of personal data in the course of a purely personal or household activity. Furthermore, member states are obligated to make exceptions tot he GDPR for processing for journalistic purposes. Similar exceptions were included in the Privacy Directive, the precursor to the GDPR which was still applicable to the Buivids case.
Purely personal or household activities
Not surprisingly, the ECJ ruled that the uploading of personal data on a website that is accessible to an indefinite number of people (for instance on Youtube), does not constitute a purely personal or household activity. This is in accordance with earlier case law of the ECJ.
Journalistic purposes
The ECJ emphasizes that ‘journalistic purposes’ should not be interpreted too strictly.
Indeed, journalistic activities according to the ECJ are all activities which have as their purpose the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. This means that a Youtube video of any amateur vlogger can potentially fall under the journalistic exception. It is not necessary to be a professional journalist or news organization.
The existence of journalistic activities, according to established case law, depends on, inter alia, the contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the manner and circumstances in which the information was obtained and its veracity.
It is now up to the Latvian court to determine, on the basis of the ECJ judgement, whether Buivids can invoke the journalistic exception. This may very well be the case. For Buivids, this would mean that the data protection rules would only partially apply.
Derogations for journalistic purposes
The GDPR provides several derogations to its rules in case of journalistic purposes, for instance the following:
- If the publication is based on consent from the data subject, the data subject cannot withdraw his consent.
- The rights of the data subject in chapter III of the GDPR do not apply. For example, informing data subjects in a privacy statement is not necessary.
- The data breach notification obligation and the obligation to appoint a data protection officer, do not apply.
- The rules regarding transfer of personal data to a third country do not apply.
- The prohibition of processing of special categories of personal data (such as race or political opinions) or personal data relation to criminal convictions and offences, are not applicable insofar these data are necessary for the journalistic purpose.
Naturally, the core principles of the GDPR will still apply. Processing personal data for journalistic purposed must therefore, like any processing activity, have a legitimate ground. This may be consent of the data subject, but might also be the legitimate interest of the ‘journalist’ when that interest outweighs the privacy interest of the data subject. The latter will of course depend on the circumstances of the case.
Summary
Everyone can potentially invoke the journalistic exception, even when one is not a journalist. This exception illustrates that the GDPR is more nuanced than is often believed. The GDPR, after all, emphasizes that the right to privacy should not unnecessarily limit the right to freedom of expression and information.
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