IP (Slovenia) - 0600-10/2024/2
| IP - 0600-10/2024/2 | |
|---|---|
 | |
| Authority: | IP (Slovenia) |
| Jurisdiction: | Slovenia |
| Relevant Law: | Article 17 GDPR Article 85(1) GDPR |
| Type: | Complaint |
| Outcome: | Rejected |
| Started: | 05.03.2024 |
| Decided: | 21.03.2024 |
| Published: | |
| Fine: | n/a |
| Parties: | n/a |
| National Case Number/Name: | 0600-10/2024/2 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Slovenian |
| Original Source: | IP (in SL) |
| Initial Contributor: | im |
The DPA considered that it is not competent to deal with a complaint regarding the right to erasure of data processed by the press in the exercise of its freedom of expression.
English Summary
Facts
On 5 March 2024 a data subject lodged a complaint with the DPA against a website owner (‘controller’) who published an article in which they disclosed the data subject’s personal data. The personal data disclosed included the data subject’s religious beliefs.
In addition to that, the controller also published the applicant’s personal data in the newsletter and refused to withdraw this publication despite the data subject’s request for erasure. This was justified by the freedom of speech of the press.
The data subject claimed that they did not consent to this data processing neither was provided a prior notice concerning the disclosure.
Holding
The DPA rejected the data subject’s claim.
As an introduction, the DPA recalled Article 39(1) of the Constitute of the Republic of Slovenia which guarantees freedom of thought, speech and public speaking of the press and other forms of public information and expression. Like the right to the protection of personal data under Article 38 of the Constitution of the Republic of Slovenia, the right to freedom of expression is not unlimited.
The DPA confirmed that the controller is a media broadcaster under the Slovenian Media Act. Article 6 Media Act provides that the activities of the media shall be based on freedom of expression as stipulated by the Constitution. According to the DPA, the publication in question is clearly a reflection of that right.
Additionally, freedom of expression shall be ensured also in the exercise of rights of data subjects in the context of personal data processed under Article 73 of the Slovenian Data Protection Law (‘ZVOP 2’).
In particular, the determination of the right to erasure Article 17 GDPR in cases where personal data are processed in the exercise of the freedom of thought, speech and public expression of the press is not an administrative matter. In fact, according to the DPA, this case shall be dealt with by courts.
Therefore, the DPA decided to reject the claim as it is not an administrative matter, neither within its competence.
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English Machine Translation of the Decision
The decision below is a machine translation of the Slovenian original. Please refer to the Slovenian original for more details.
Number: 0600-10/2024/2
Date: 21 March 2024
Information Commissioner (hereinafter: IP) according to the State Supervisor for the Protection of Personal Data at
on the basis of 55 Article of the Personal Data Protection Act (hereinafter ZVOP-2), Articles 55 and 57 of the Regulation
(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals in
processing of personal data and on the free flow of such data and the repeal of Directive 95/46/EC
(General Data Protection Regulation; hereinafter: General Regulation) and the first paragraph of Article 129
of the General Administrative Procedure Act (hereinafter: ZUP) in the decision-making process on the request
individual: ... (hereinafter: the applicant), dated 5 March 2024, to control the legality of the processing of his
of personal data (hereinafter: the application), which should be carried out by ... (hereinafter: the controller), within the framework
the publication in the article titled "..." is published by the following
CONCLUSION
1. The applicant's appeal: ..., dated March 5, 2024, is dismissed.
2. No special costs were incurred in this IP procedure, and the applicant bears his own costs.
Explanation
IP received the applicant's application from 3/5/2024 by e-mail on 3/5/2024. In it, the applicant states,
that the manager published an article on his website with the title "..." in which without the consent of the applicant
and discloses the applicant's personal information, including his religion, without prior notice
beliefs. In addition, the administrator also published the applicant's personal data in the newsletter "..." and there are no publications
withdrawn, despite the applicant's request for deletion.
The application is rejected.
3
The Constitution of the Republic of Slovenia (hereinafter: the Constitution of the Republic of Slovenia) provides in the first paragraph of Article 39
freedom of expression of thought, speech and public speaking, press and other forms of public information and
expressions. Everyone can freely collect, accept and spread consciences and opinions. The same as for the right to
the protection of personal data from Article 38 of the Constitution of the Republic of Slovenia also applies to the right to freedom of expression
unlimited. In the case where there is a collision between two coexisting rights, a conflict between the rights is necessary
harmonize, formulate a rule on the coexistence of rights in concrete circumstances.
As a media publisher, the operator is registered in the media register according to the Media Act (hereinafter: Zmed),4
which in Article 6 stipulates that the activity of the media is based on freedom of expression, inviolability and protection
human personality and dignity, on the free flow of information and openness of the media to different
opinions, beliefs and for diverse content, on the autonomy of editors, journalists and other authors
1
Official Gazette of the Republic of Slovenia, no. 163/22.
2 Official Gazette of the Republic of Slovenia, no. 24/06 – UPB2, 105/06 - ZUS-1, 126/07, 65/08, 8/10, 82/13, 175/20 - ZIUOPDVE and
3/22 – ZDeb.
3 Official Gazette of the Republic of Slovenia, no. 33/91-I, 42/97 - UZS68, 66/00 - UZ80, 24/03 - UZ3a, 47, 68, 69/04 - UZ14,
69/04 - UZ43, 69/04 - UZ50, 68/06 - UZ121,140,143, 47/13 - UZ148, 47/13 - UZ90,97,99,
75/16 - UZ70a and 92/21 - UZ62a, hereinafter: Constitution of the RS.
4 Official Gazette of the Republic of Slovenia, no. 110/06 – UPB1, 36/08 - ZPOmK-1, 77/10 - ZSFCJA, 90/10 - Ord. US,
87/11 - ZAvMS, 47/12, 47/15 - ZZSDT, 22/16, 39/16, 45/19 - Ord. US, 67/19 - sec. US and 82/21.
1 when creating program content in accordance with program designs and professional codes, and
on the personal responsibility of journalists or other contributors and editors for the consequences
their work. In view of the above, the publication of articles in registered media is undoubtedly a reflection of freedom
expressions.
The protection of freedom of expression in relation to the right to the protection of personal data is regulated in Article 73
ZVOP-2, as per the third paragraph, stipulates the enforcement of the rights of the individual to which their personal
data processed under this article are provided by the courts in accordance with the provisions of other laws that regulate
freedom of expression and judicial protection. Taking into account the aforementioned decision on the right to erasure according to Article 17
General Regulations in cases where personal data is processed in the context of exercising freedom of expression,
speech and public speaking, press and other forms of public information and expression within the framework of the legal order
of the Republic of Slovenia, is not an administrative matter, but belongs to the jurisdiction of the courts.
In accordance with point 1 of the first paragraph of Article 129 of the ZUP, the authority first examines the request and rejects it with a conclusion,
if the matter to which the application refers is not an administrative matter, therefore the IP decided, as follows from point 1 of the sentence
of this conclusion.
Pursuant to the third paragraph of Article 118 of the ZUP, the costs of the procedure are decided in the resolution ending the procedure.
Because in this IP procedure, no special costs were incurred, and the applicant based on the second paragraph of Article 30
ZVOP-2 bears its own costs, the aforementioned follows from point 2 of the sentence of this decision.
In accordance with point 23 of the first paragraph of Article 28 of the Administrative Fees Act (hereinafter: ZUT), 5
registration of the tax applicant is free. Because it complies with the provision of the third paragraph of Article 57 of the General Regulation
performing the tasks of each supervisory body (including handling complaints filed by an individual, to
whose personal data are referred to according to point (f) of the first paragraph of Article 57 of the General Regulation) for
of the data subject free of charge and because the supervisory authority on the basis
of the second paragraph of Article 55 of ZVOP-2, the powers and tasks from the first paragraph of Article 55 of ZVOP-2, between
which also includes decision-making in the application procedures of applicants with a special status, is carried out free of charge, is no
according to the provisions of the ZUT, this decision is also tax-free.
LESSON ON LEGAL REMEDY:
There is no appeal against this decision, but it is permissible to initiate an administrative dispute. An administrative dispute is initiated by filing a lawsuit
at the Administrative Court, Fajfarjeva 33, 1000 Ljubljana. The lawsuit must be filed within thirty (30) days from
service of this decision. The claim is filed directly in writing with the said court or sent to it by post.
The claim is deemed to have been filed with the court on the day it was sent by registered mail.
in addition to the original, copy or copy of this decision, one copy or copy of the lawsuit and attachments for
the defendant, if anyone is affected by the administrative act, as well as for him.
...,
State Supervisory Office for the Protection of Personal Data
Serve:
1. To the applicant: ... - in person according to ZUP.
5 Official Gazette of the Republic of Slovenia, no. 106/10 – UPB5, 14/15 - ZUUJFO, 84/15 – ZzelP-J, 32/16, 30/18 - ZKZaš and
189/20 – ZFRO.
2
