Article 85 GDPR

← Article 85 - Processing and freedom of expression and information →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 85 - Processing and freedom of expression and information

1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.

2. For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, Member States shall provide for exemptions or derogations from CHAPTER II (principles), CHAPTER III (rights of the data subject), CHAPTER IV (controller and processor), CHAPTER V (transfer of personal data to third countries or international organisations), CHAPTER VI (independent supervisory authorities), CHAPTER VII (cooperation and consistency) and CHAPTER IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.

3. Each Member State shall notify to the Commission the provisions of its law which it has adopted pursuant to paragraph 2 and, without delay, any subsequent amendment law or amendment affecting them.

Relevant Recitals

Recital 153: Processing of Personal Data Solely for Journalistic Purposes, or for the Purposes of Academic, Artistic or Literary Expression

Member States law should reconcile the rules governing freedom of expression and information, including journalistic, academic, artistic and or literary expression with the right to the protection of personal data pursuant to this Regulation. The processing of personal data solely for journalistic purposes, or for the purposes of academic, artistic or literary expression should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information, as enshrined in Article 11 of the Charter. This should apply in particular to the processing of personal data in the audiovisual field and in news archives and press libraries. Therefore, Member States should adopt legislative measures which lay down the exemptions and derogations necessary for the purpose of balancing those fundamental rights. Member States should adopt such exemptions and derogations on general principles, the rights of the data subject, the controller and the processor, the transfer of personal data to third countries or international organisations, the independent supervisory authorities, cooperation and consistency, and specific data-processing situations. Where such exemptions or derogations differ from one Member State to another, the law of the Member State to which the controller is subject should apply. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly.

Commentary

The GDPR provides for stringent requirements when personal data is processed. It is required, among other things, to have a legal basis for each processing operation (Article 6, 9 or 10 GDPR), answer requests from data subjects, including erasure requests (Article 17 GDPR) and to delete personal data when they are longer necessary, in accordance with the storage limitation principle (Article 5(1)(e) GDPR). In other words, the processing of personal data is not an activity which can be taken lightly.

This, in turn, may have a negative impact on the circulation of information, and therefore on freedom of expression. For some actors having limited resources indeed, such as artists, independent journalists, or simple citizens, complying with the GDPR may become too challenging, and therefore deter them from expressing themselves. In other instances, the stringent obligations imposed by the GDPR, such as the obligation to inform data subjects (Article 12 to 14 GDPR), may defeat the very purpose of the processing, such as when a whistle-blower intends to disclose classified information, or when a journalist investigates fraudulent actions. Article 85 provides guidance to Member States on how to reconcile the different interests at stake in order to ensure that freedom of expression is not unduly restricted following the application of data protection rules.

From the point of legislative history, Article 85 GDPR is a development of Article 9 of the 95/46 directive of the European Union. Article 9 obliged Member States to provide derogations from the directive for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic and literary expression, and only if they are necessary to reconcile the right to privacy with the rights governing freedom of expression. Article 85 GDPR goes beyond this provision by removing the ‘solely’.

(1) Reconciling data protection rules with freedom of expression

One of the first landmark cases before the CJEU which highlighted potential conflicts between data protection law and freedom of expression was Lindqvist. Mrs Lindqvist was an active member of Alseda, a small community in Sweden. At the end of 1998, she set up internet pages on her personal computer to disseminate information on the local activities. These pages also contained personal information on Mrs Lindqvist as well as other people in the community, including their first and sometimes full names. Mrs Lindqvist also described the work done by some of her colleagues and their hobbies, their family circumstances or their telephone number. She also mentioned that one of her colleagues had injured her foot and was working part-time.

Following a complaint against Mrs Lindqvist at the national level, the latter was fined SEK 4000 (approximately EUR 450) by the Swedish DPA for not complying with the applicable data protection legislation. Mrs Lindqvist appealed that decision, and in the context of these proceedings, the national court referred several questions to the CJEU. One of these questions directly addressed the need to achieve a balance between the exercise of Mrs Lindqvist’s freedom of expression and the right to privacy and data protection of the others.

In this respect, the CJEU considered that the 1995 EU Data Protection Directive (the GDPR’s predecessor) do not necessarily bring a restriction which conflicts with the general principles of freedom of expression, but it is up to the national courts to ensure a fair balance between the rights and interests in question. In the specific case, Mrs. Lindqvist's freedom of expression in her work to contribute to the local religious life had to be weighed against the protection of individual rights. To balance these two, the court emphasised on the importance of respecting the principle of proportionality that means taking into account all the circumstances of the case before it before making a decision.

In line with this case law, Article 85 GDPR requires Member States to adopt exemptions at the national level to achieve a balance between data protection on the one side, and freedom of expression and information on the other side, including processing for journalistic purposes and the purposes of academic, artistic or literary expression. These exemptions should allow journalists, academics, artists and writers to fulfil their respective social function without being unduly burdened by data protection rules.

Article 85(1) GDPR sets out a legal framework to reconcile the data subject’s right to data protection with the performance of the equally crucial interest of providing society with free, informed and impartial information (regardless of whether it refers to journalistic, scientific, artistic or literary expression). What this “reconciliation” consists of is mostly a matter of necessity, as specified in Article 85(2) GDPR, discussed below.

In general, Article 85(1) should be interpreted as a regulatory mandate for member states to to reconcile the rights to data protection with the rights to freedom of expression and information. Article 85(2) sets out the implementation requirements for 85(1) to be fulfilled. While not outlined, the academic commentary agrees that Article 85(1) should not be read as requiring member states to reconcile data protection with freedom of expression and information in areas which are not linked to the purposes outlined in Article 85(2).

(2) Exemptions

Under Article 85(2) GDPR, when processing is carried out for journalistic purposes or the purpose of academic, artistic or literary expression, Member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) where necessary to reconcile the right to the protection of personal data with the freedom of expression and information The extent of what is "necessary" for this purpose is necessarily a matter of interpretation by the national and European courts.

Public interest as a guiding principle

In Google Spain, the CJEU clarified the relationship between data protection and freedom of information. According to this judgment, national courts must balance the sensitivity of the information with the public interest in knowing it. Equally relevant to this issue is the case-law of the European Court of Human Rights (ECtHR) on the interpretation of the provisions of the European Convention on Human Rights (the Convention). The ECtHR's case-law has consistently recognised the role of the press for the proper functioning of a democratic society. In this sense, the media not only serve as “public watchdog” but also contribute to the production and circulation of information and ideas in the public interest. The ECtHR has notably stated that “[f]reedom of the press gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society”. Furthermore, the ECtHR has consistently made clear that the right to privacy and the right to freedom of expression “are equal rights that states must balance, based on the criteria the Court has identified in its case law”. Further, in Von Hannover v. Germany, the ECtHR found that two photographs depicting a royal family on holiday and publishing their reportage in two German newspapers violated the right to privacy pursuant to Article 8 of the Convention because they did not reflect any matter of public interest detailed in the accompanying text. However, a third photograph depicted “a Prince in poor health, and since the health of the Prince was a matter of public concern, the ECtHR found that the publication of such information did not violate Article 8 of the Convention”. In reaching its decision, the ECtHR set out the criteria which domestic courts should follow when balancing the right to privacy against the right to freedom of expression: “firstly, whether the information contributes to a debate of general interest; secondly, how well known the person concerned and the subject matter of the report is; thirdly, the prior conduct of the person concerned; fourthly, content, the form and consequences of the publication; and fifth, the circumstances in which the photos were taken”.

Scope of the exceptions within the GDPR framework

As mentioned above, the GDPR recognises the need to protect freedom of expression (whatever the form) and authorises Member States to adopt, where necessary, statutory derogations to a large part of the GDPR itself, including data processing principles, data subject's rights, rules on international transfers, and even the subjection to the scrutiny of the supervisory authorities. Much (if not everything) seems to be abstractly possible in order to protect freedom of expression. On this point, we note that this favourable treatment does not extend to the protection of national security, defence, or other important objectives of general public interest listed in Article 23 GDPR (to which we refer for a complete analysis of the relevant discipline). National security, for example, can in some instances be invoked as a ground to derogate from the GDPR, but only with respect to the data subject's rights, and only on the condition that such a restriction "respects the essence of the fundamental rights and freedoms" and is "necessary and proportionate [...] in a democratic society". Conversely, when freedom of expression (including artistic, literary or academic expression) is taken into account, the GDPR envisages much broader exemptions to its own rules. Thus, it seems that the GDPR restrictions justified by overriding interests such as national security, defence, and crime prevention (Article 23(1)(a-j) GDPR) allow for far fewer GDPR restrictions than those granted by freedom of expression.

Necessary to reconcile

Article 85(2) GDPR poses one condition for exemptions on the basis of freedom of expression to be valid: they must be "necessary to reconcile" the right to the protection of personal data with the freedom of expression and information. Member States may thus restrict the scope of a data protection principle, limit the exercise of a right by a data subject, or reduce the obligations of controllers, only if this is necessary to achieve a reconciliation between the GDPR and the freedoms of expression and information, including academic, artistic or literary expression. Some commentators rightfully note that the exemption must in any case be justified by a communication purpose. For example, a proportionate exemption will rightfully apply to an artistic photo meant for an exhibition, but not to the data of buyers that the art gallery holds for its economic activity. Indeed, in the latter case the exemption is not necessary to safeguard the artist’s freedom of artistic expression, but only to allow the art gallery to maintain an economic advantage. Beyond this, Article 85(2) GDPR seems to leave full discretion to Member States to determine in which circumstances a reconciliation is necessary, and how it can be achieved. The approach adopted at the national level therefore varies from one Member State to another. Some have provided some details on the scope of these exemptions in their national data protection law (as in the Belgian data protection law).

This concept is also reflected in Article 52 of the Charter of Fundamental Rights. Article 52(1) states; “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” Thus, both Article 52 of the Charter alongside Article 85 of the GDPR sets limits on how member states may reconcile the right to freedom of expression and information.

Since freedom of expression (Article 11 and 13) and data privacy (Article 8) are both in the Charter of Fundamental Rights, it would run counter to the equal ranking of the fundamental rights to data protection, freedom of expression and information if Member States would provide unnecessary derogations. This necessity principle can therefore be seen as a way to ensure that the rights are actively balanced. Blanket exemptions from the GDPR in the fields of journalism, academia, arts and literature are not in line with Union Law.

Journalistic expression

The first question on journalistic expression concerns the scope of the concept of 'expression'. In general, there seems to be a sort of overlap between the notion of 'expression' and that of 'journalism'. Thus, theoretically the privilege stemming from (the national implementation of) Article 85 GDPR would therefore only be granted to those who qualify as journalists. In theory, this approach may pose considerable problems for those who are not professional journalists. In practice, however, the problem loses part of its relevance. Recital clarifies that the privilege does not only apply to the classic professional press, but also to the audio-visual sector, i.e. television and radio, as well as for news and press archives. In addition, people without journalistic training also benefit from the exemption insofar as they carry out investigative research activities.

In fact, according to Recital 153 GDPR the term 'journalism' is to be interpreted broadly. Journalistic purposes are not limited to data processing by media corporations but rather any person engaging in journalistic purposes. Processing for journalistic purposes includes data processing which is in connection with the expression of an opinion or aimed at creating one within the public. According to AG Kokott information is in the public interest if it either related to a current public debate, public hearings before a tribunal, transparency of public life or information on the ideas and attitudes, as well as conduct, of prominent politicians.

However, data processing carried out for purposes that are not primarily aimed at informing the public is not privileged. For example, the handling of suppliers or employee data for technical or administrative reasons is not covered by Article 85 GDPR. Similarly, in line with the Lindqvist case-law discussed above, an individual sharing personal data on social media will still be subject to the provisions of the GDPR, except if the sharing of such information participates to a public debate and is covered by freedom of expression, or if it is shared in the course of a purely personal or household activity (for example, in a closed message group).

There does seem to be a minimum standard to journalistic purposes as at least some journalistic, academic, artistic editing or treatment of the data is necessary to qualify. The mere provision of lists of addresses, address books and, telephone or classified directories does not justify an exemption or derogation.

Artistic, literary and academic expression

From a systematic point of view, artistic, literary or academic expression seem to be equated with journalistic expression (as seen above). For this reason, in the absence of more specific indications from both the CJEU and ECtHR, it seems reasonable to apply the same conclusions and principles to these sectors. In this vein, the exemption would be valid for a photo, book or article containing personal data, but only if it is intended to be published, for example, in an art gallery, library or scientific journal. Conversely, data processing carried out by the photographer, writer or academic which is not intended for public discussion (e.g. the record of the gallery's customers) will not fall within the scope of the exception. This nonetheless obviously depends on the national implementation of Article 85 GDPR. At present, not all Member States have specific legislation on artistic, literary or academic expression. This contributes in no small measure to the uncertainties surrounding the processing of personal data in these areas.

This concept is also echoed in Article 13 Charter of Fundamental Rights. In fact, “[the] right is deduced primarily from the right to freedom of thought and expression.”

(3) Notification to the Commission

Each Member State has the obligation to notify the Commission of the provisions of national law which were adopted pursuant to Article 85(2) GDPR and, without delay, any subsequent amendment(s) affecting them. The actual national transposition of these exemptions must immediately be notified to the Commission. Indeed, there is a need for monitoring the exemption measures adopted by each Member States to ensure that the latter have complied with the principle set out in Article 85 GDPR.

Decisions

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