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Can the GDPR and Freedom of Expression Coexist?

  • Nani Jansen Reventlow (a1)
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References

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1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119) 1 [hereinafter GDPR].

2 Jo Glanville, The Journalistic Exemption, 40 London Rev. Books 9-10 (July 5, 2018).

3 See Lindsey Rogers Cook, How We Helped Our Reporters Learn to Love Spreadsheets, N.Y. Times (June 12, 2019); Data Journalism, Guardian (Mar. 2019).

4 The International Consortium of Investigative Journalists, a global network of more than 190 investigative journalists in more than 65 countries, combined data from the Panama Papers, the Offshore Leaks, the Bahamas Leaks, and the Paradise Papers investigations in a single database.

5 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31.

6 GDPR, supra note 1, art. 85.

7 See also Case C-73/07, Satakunnan Markkinapörssi Oy & Satamedia Oy, ECLI:EU:C:2008:727, (Eur. Ct. Justice, Dec. 16, 2008).

8 See supra note 5.

9 Charter of Fundamental Rights of the European Union art. 11, 2000 O.J. (C 364) 1 (Oct. 26, 2012) [hereinafter European Charter].

10 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 art. 10, Nov. 4, 1950, E.T.S. No. 5, art. 10.

11 International Covenant on Civil and Political Rights art. 19, Dec. 16, 1966, 999 UNTS 171.

12 European Charter, supra note 9, art. 52.3 states, “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

13 Axel Springer AG v. Germany (no. 2), App. No. 48311/10 (Eur. Ct. Hum. Rts., July 10, 2014) (in French). There is only an English summary.

14 Castells v. Spain, App. No. 11798/85 (Eur. Ct. Hum. Rts., Apr. 23, 1992).

15 Von Hannover v. Germany (2), App. Nos. 40660/08 and 60641/08 (Eur. Ct. Hum. Rts., Feb. 7, 2012).

16 As of early 2019, all but three states had legislated to implement the GDPR as such; two countries (Portugal and Greece) had legislation pending; and one was in the process of redrafting a previously withdrawn bill. See the GDPR Tracker prepared by the law firm Bird & Bird.

17 Austria, Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, Slovakia, Spain, Sweden, and the United Kingdom have all enacted these laws. See Bird & Bird GDPR Tracker.

18 Data Protection Act of Slovakia, sec. 78. See Bird & Bird GDPR Tracker.

19 Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales art. 85 (in Spanish).

20 See supra note 2.

21 Nikolaj Nielsen, EU Warns Romania Not to Abuse GDPR Against Press, EU Observer (Nov. 12, 2018).

22 Stephanie Kirchgaessner, MEPs Call for Power to Tackle “Vexatious Lawsuits” Targeting Journalists, Guardian (Feb. 22, 2018).

23 See the case statistics page of the European Court of Human Rights.

24 Veronika Fikfak, Changing State Behaviour: Damages Before the European Court of Human Rights, 29 EJIL 1091 (2018).

Can the GDPR and Freedom of Expression Coexist?

  • Nani Jansen Reventlow (a1)

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