Since the very first draft of proposed EU legislation on the processing and free movement of personal data, newspaper and magazine publishers throughout Europe have been concerned at the potential impact of such a directive on the freedom of the press. It is crucial to the maintenance of a free press that the processing (i.e. collection, storage,processing and final publication) of personal data for journalistic and editorial purposes should be exempted from the scope of the directive.
The text that was agreed in the Common Position of the Member States was, in our view, the minimum protection needed to guarantee that journalistic freedom was ensured during the implementation of legislation at national level.
The final version of the directive, adopted by the Member States, contains a last minute amendment (*). This limits the scope of the original exemption significantly by introducing a legislative basis to test against the public interest the rights of publishers to process and ultimately publish personal data – on a case by case approach.
The amendment poses a threat to the fundamental freedom of expression.
Freedom of expression
Article 10 of the European convention for the protection of Human Rights and Fundamental Freedoms guarantees the freedom of information and the right to receive and impart information. This is reflected in some EU Member States’ national constitutions and also in the Recitals of the Directive, which emphasise the necessity for Member States to provide exemptions and derogations necessary effectively to balance these freedoms with the fundamental rights of individuals.
The need for a broad exemption to guarantee the freedom of the press
The EPC’s concern is that, unless there is a broad exemption for publishers for editorial content, the new data protection requirements would provide real practical impediments to newspaper publishing and seriously jeopardise
much of our investigative journalism. A case-by-case approach, judged on public interest grounds would be a threat to the freedom and independence of the press in Europe. Furthermore, we would be very concerned if the supervisory authorities were empowered to take ad hoc decisions as to whether or not a particular case was of "important public interest".This would impose unacceptable obligations on publishers to prove necessity in each case.
Data collection and investigative journalism
During the course of their day to day work, journalists collect and store an enormous amount of information, far more than is ever published. Journalists and their editors need to check facts with as many sources as possible to corroborate their information and make sensible judgements as to if, how and when to use this information.
This means that much data, both personal and general, is stored by journalists and publishers in manual and electronic form.
Confidentiality of sources
Some of this information has been disclosed to journalists in confidence and as such in the secure knowledge that their sources will not be disclosed. This confidentiality would be threatened if those under investigation, or officers of the Law or Regulatory Authorities,were able to gain access to confidential files. Publishers are very
concerned at the direct conflict between a law relating to the disclosure of information and our commitment to observing confidentiality of our sources.
Investigation and injunction
We are concerned that persons under investigation, notably those who are alleged wrong-doers or suspected of behaving badly, could seek a request for an injunction, and thus interfere with investigative journalism and the freedom of the press. Under threat of an injunction, confidential sources would dry up; publication could be
delayed; and ultimately the investigation might be thwarted which would be contrary to the public interest.
Publishers are concerned that Data Protection legislation will be used as a means of introducing a wider right of privacy. Any attempt to introduce restrictive privacy measures via legislation designed for different purposes will not be acceptable to publishers as it would threaten the freedom of the press.
The impact of digital technology
The advent of digital technology makes it easier to store, process and manipulate large amounts of detailed text and images. But this is not sufficient reason to increase powers of an individual's access to information held by publishers. It is undoubtedly technically easier forindividuals to access and search such information in digital format; we are concerned that we face challenges to the editorial process, using data protection legislation as justification.