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EUROPEAN COMMISSION
DIRECTORATE
GENERAL XV
Internal Market and Financial
Services
Free movement of information, company
law and financial information
Free movement
of information and data protection, including international aspects
XV/5012/97-EN
Working Party on the Protection of Individuals
with regard to the Processing of Personal Data
Recommendation 1/97
Data protection law and
the media.
Adopted by the Working Party on 25 February 1997
CONTENTS
1. Introduction 2. General Aspects
2.1 Freedom of expression and the protection of privacy
2.2 Legislative history of art. 9 of the directive 2.3 Summary
of the current situation in national law
3. Conclusions
Done at Brussels, 25 February 1997
For the Working Party
The Chairman
P.J. HUSTINX
The working party
on the protection of individuals with regard to the processing of
personal data set up by Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995, having regard to Articles 29 and 30 paragraph 3 of that Directive, having regard to its Rules of Procedure and in particular to articles
12 and 14 thereof has adopted the present recommendation:
1. Introduction
Article 9 of directive 95/46/EC on the protection of individuals
with regard to the processing of personal data and the free movement
of such data (‘the directive') reads as follows:
Member States shall provide for exemptions or derogations from the
provisions of this
Chapter, Chapter IV and Chapter VI for the processing of personal
data carried out solely for journalistic purposes or the purpose
of artistic or literary expression only if they are necessary to
reconcile the right to privacy with the rules governing freedom
of expression.
The Working Party, following the mandate laid down in art. 30 1
a) of the directive, started discussions during its first meeting
on the possible implementation of article 9. Working Documents were
presented by the UK and the German delegations. During the debate
it emerged that national laws currently differ as to the application
of data protection provisions to the media.
It was recognised that the
Working Party could usefully give some guidance on the interpretation
of article 9 of the directive. As a preliminary step it was agreed
that the secretariat should collect information on the current legal
situation and produce a report taking into account the report on
‘Data Protection and the Media' issued by the Council of Europe
in 1991. A questionnaire drafted by the Working Party was distributed on
21 February 1996. The Working Party discussed a working document at its third meeting
and reached some conclusions which were discussed in detail in the
fourth meeting. In the light of the content of these conclusions
a consensus emerged for adopting the document as a recommendation
within the meaning of article 30 paragraph 3 of the directive. The
recommendation was adopted by the Working Party on 25 February 1997. The following section outlines some general aspects of the application
of data protection law to the media including the legislative history
of article 9 of the directive. Section three summarises some of
the main features of the current legislative situation at national
level. The fourth section includes the conclusions of the discussion
of the working party as to the application of data protection law
to the media. Article 9 provides for limitations and exemptions from the application
of certain provisions of the directive in relation to processing
of data for journalistic purposes as well as for purpose of artistic
and literary expression. The debates of the Working Party focused
on data processing by the media for journalistic purposes. The present
recommendation therefore focuses on exemptions and derogations in
relation to processing for journalistic purposes.
3. Conclusions2. General Aspects
2.1 Freedom of expression and the protection of privacy Article 10 of the European Convention for the protection of Human
Rights and fundamental freedoms (ECHR) establishes that:
Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and to impart information
and ideas without interference by public authority and regardless
of frontiers.[..]
This right is one of the fundamental human rights deriving from
the constitutional traditions common to the Member States and is
one of the most characteristic elements of the legal heritage of
democratic societies. Historically it was one of the first human
rights to be demanded and indeed guaranteed in law. The press in
particular received special legal and constitutional guarantees,
in particular against prior censorship.
The right to privacy is similarly guaranteed
by article 8 of the ECHR. Data protection comes within the scope
of the protection of private life guaranteed under this article.
Derogations to the principles of data protection and to article
8 of the ECHR must be in accordance with the law and must respect
the principle of proportionality. Equally limits to freedom of expression,
such as the ones that might derive from the application of data
protection principles, must also be in accordance with the law and
respect the principle of proportionality. However the two fundamental rights must not be seen as inherently
conflicting. In the absence of adequate safeguards for privacy individuals
may be reluctant to freely express their ideas. Similarly identification
and profiling of readers and users of information services is likely
to reduce the willingness of individuals to receive and impart information.
2.2 Legislative history of art. 9 of the directive According to article F paragraph 2 of the Treaty on European Union
the Union shall respect fundamental rights as guaranteed by the
ECHR and the constitutional traditions common to the Member States. The Community legislator has acknowledged the particular case of
the media and the need to strike a balance between protection of
privacy and protection of freedom of expression. Art. 19 of the original Commission proposal provided that Member
States might grant derogations from the provisions of the directive
in favour of the press and the audiovisual media. The explanatory
report made it clear that the key feature of this article is the
obligation to balance the interests involved and that this balance
may take into account the availability of other remedies or of a
right of reply, the existence of a code of professional ethics,
the limits laid down by the ECHR and the general principles of law. Article 9 of the Commission's modified proposal made the granting
of derogations for the media mandatory. The text was also modified
as to include journalists and in order to limit the derogations
to journalistic activities. The article was further modified to its current drafting so that
derogations may not apply indiscriminately to all the data protection
provisions. Under the current text the derogations are indeed mandatory
but ‘only if they are necessary' meaning that the derogations to
each specific principle of the directive must be granted only in
so far (French "dans la seule mesure où" German "nur insofern
vor, als sich dies als notwendig erweist") as it is necessary to
strike a balance between privacy and freedom of expression. Furthermore
these derogations may only concern the general rules on the lawfulness
of the processing of personal data, the rules on transfer of data
to third countries and the rules on the supervisory authority. According
to recital 37 no derogations from the rules on security shall be
possible and the supervisory authorities responsible for this sector
should be provided at least with certain ex-post facto powers such
as the power to publish regular reports or to refer matters to the
judicial authorities. 2.3 Summary of the current
situation in national law The different national laws currently address the issue by taking
one of the following approaches:
a) In some cases data protection legislation does not contain
any express exemption from the application of its provisions to
the media. This is the current situation in Belgium, Spain, Portugal,
Sweden and the United Kingdom.
b) In other cases the media are exempted from the application
of several provisions of data protection legislation. This is
the current situation in the case of Germany, France, The Netherlands,
Austria and Finland. Similar derogations are envisaged by the
draft Italian legislation.
c) In other cases the media are exempted from general data protection
legislation and regulated by specific data protection provisions.
This is the case in Denmark for all media and in Germany in relation
to public broadcasters, which are not covered by federal or Länder
data protection laws, but are subject to specific data protection
provisions in the inter-Länder treaties which regulate them.
The differences between these three models should not however be
over-estimated. In most cases, independently of any express derogation
that may exist, data protection legislation does not apply fully
to the media because of the special constitutional status of the
rules on freedom of expression and freedom of the press. These rules
place a de facto limit on the application of substantive data protection
provisions or at least their effective enforcement.
On the other hand the ordinary data
protection regime generally applies to non editorial activities
performed by the media. Data protection supervisory authorities when applying data protection
law recognise the particularity of the media both where a special
legal regime exists and where it does not. The effective extent of the derogations furthermore cannot be assessed
in abstract terms but it is dependent on the overall structure of
the data protection legislation in each given country. Clearly the
extent of the derogations needed is dependent on the extent to which
the substantive rules would effectively have a bearing on the activities
of the media. The differences as to the application of data protection law to
the media may also be explained by changing perspectives both on
the role of data protection law and on the use of information technology
by the media. In the early days of data protection the attention
tended to focus on large mainframe-based databases. In those days
the media seemed hardly concerned by such rules and no derogations
from them therefore seemed necessary. The shifting emphasis of data
protection law towards the notion of processing and the extensive
use of information technology by the media have fundamentally changed
the situation. One important element that emerges from the current legislative
situation in the Member States is that the media, or at least the
press, are bound to respect certain rules which although not part
of data protection legislation in a proper sense contribute to the
protection of the privacy of individuals. Such legislation and the
often rich case-law on the matter confer specific forms of redress
which are sometimes considered a substitute for the lack of preventive
remedies under data protection law. The right to reply and the possibility to have false information
corrected, the professional obligations of journalists and the special
self-regulatory procedures attached to them, together with the law
protecting honour (criminal and civil provisions concerning libel)
must be taken into consideration when evaluating how privacy is
protected in relation to the media. The moving of traditional media towards electronic publishing and
the provision of on-line services seems to add further elements
for reflection. The distinction between editorial activities and
non-editorial activities assumes new dimensions in relation to on-line
services which, unlike all traditional media, allow an identification
of the recipients of the services. 3. Conclusions
The foregoing seems to confirm that a general reassessment of the
legislative framework for the application of data protection law
to the media is needed in each Member State. In this regard it is
necessary to evaluate to what extent the application of each provision
of chapters II, IV and VI of the directive needs to be limited in
order to protect freedom of expression. In doing so several elements must be born in mind:
- Data protection law does in principle apply to the media. Derogations
and exemptions may be granted only in relation to Chapter II on
the general measures on legitimacy of data processing, Chapter
IV on data transfers to third countries and Chapter VI on the
powers of supervisory authorities. No derogation or exemption
from the provisions on security may be granted. Supervisory authorities
responsible for this sector must in all case retain certain ex-post
facto powers.
- Derogations and exemptions under article 9 must follow the
principle of proportionality. Derogations and exceptions must
be granted only in relation to the provisions likely to jeopardise
freedom of expression and only in so far as necessary for the
effective exercise of that right while maintaining a balance with
the right to privacy of the data subject.
- Derogations and exemptions under article 9 might not be necessary
where the flexibility of various provisions of the directive or
the derogations allowed under other specific provisions (which
of course must also be interpreted narrowly) already allow a satisfactory
balance between privacy and freedom of expression to be struck.
- Article 9 of the directive respects the right of individuals
to freedom of expression. Derogations and exemptions under article
9 cannot be granted to the media or to journalists as such, but
only to anybody processing data for journalistic purposes.
- Derogations and exemptions may cover only data processing for
journalistic (editorial) purposes including electronic publishing.
Any other form of data processing by journalists or the media
is subject to the ordinary rules of the directive. This distinction
is particularly relevant in relation to electronic publishing.
Processing of subscribers data for billing purposes or processing
for Direct Marketing purposes (including processing of data on
media use for profiling purposes) fall under the ordinary data
protection regime.
- The directive requires a balance to be struck between two fundamental
freedoms. In order to evaluate whether limitations of the rights
and obligations flowing from the directive are proportionate to
the aim of protecting freedom of expression particular attention
should be paid to the specific guarantees enjoyed by the individuals
in relation to the Media. Limits to the right of access and rectification
prior to publication could be proportionate only in so far as
individuals enjoy the right to reply or obtain rectification of
false information after publication.
- Individuals are in any case entitled to adequate forms or redress
in case of violation of their rights.
In evaluating whether exemptions or derogations are proportionate,
attention must be paid to the existing ethic and professional
obligations of journalists as well as to the self regulatory forms
of supervision provided by the profession.
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