European Data Protection Regulation and ‘Non-Journalistic’ Traditional Publishers

Abstract

Abstract This chapter explores both the statutory law applicable and the regulatory approach taken to the activity of professional artists and writers outside journalism under European data protection as it developed until the end of the Data Protection Directive (DPD) era. It is found that no pan-European data protection instrument prior to the DPD addressed this interface and such a lacuna was also reflected in the majority of first-generation data protection laws adopted at State-level. In contrast, the DPD provides special (but not absolute) derogations not just for ‘journalistic purposes’ but also for ‘literary and artistic expression’ and this was reflected in the second-generation laws of approximately two-thirds of European Economic Area (EEA) States. Despite falling within data protection’s scope, Data Protection Authorities (DPAs) have generally avoided addressing these actors’ positions. In the early period, the Swedish DPA proved a partial exception to this by publishing guidance on media created on CD-ROMs and even attempted to set license conditions for the use of a computer to produce a book manuscript. Under second-generation data protection, both the Italian and Maltese DPAs issued some specific guidance and the Italian and Slovenian engaged in concrete enforcement. These interventions pointed to a lack of consistency as regards applicable norms. Thus, whilst the Italian DPA crafted a deferential approach based on contextual rights balancing, the Maltese and Slovenian DPAs developed a much more peremptory and restrictive perspective at least as regards photographic images.