From the Scylla of restriction to the Charybdis of licence? Exploring the scope of the “special purposes” freedom of expression shield in European data protection

Abstract

The relationship between European data protection and public freedom of expression is tense. Directive 95/46 includes a special purposes provision for processing "carried out solely for journalistic purposes or . . . artistic or literary expression", but its limited scope fails to fully reconcile values in this area. The recent Google Spain decision highlights that these problems were only partially resolved in Satamedia. Proposed amendments risk expanding the scope of this highly discretionary clause into one of universal application. However, this conflicts with the core harmonizing aim of reform, and would almost certainly be interpreted much more restrictively, fuelling existing confusions. A two-pronged, layered approach may be preferable, expanding the special purposes provision to protect disclosure of information, opinion or ideas for the benefit of the public collectively, while obliging Member States to effect a broader but more stringent reconciliation of data protection with the right to public freedom of expression under general derogation provisions.