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Freedom of media and data protection:

Don’t be fooled by the journalistic exemption (Medienprivileg) – in the end it’s all about the balance of interests!

Data privacy and journalism can sometimes be at odds. While data protection seeks to restrict the processing of personal data, journalism thrives on private information and human stories.

This is where Art. 85 General Data Protection Regulation (GDPR) comes into play, aiming to alleviate that tension. Under said Article the Member States shall by law reconcile the right to the protection of personal data pursuant to the GDPR with the right to freedom of expression and information, including processing for journalistic purposes (Art. 85 para. 1). Moreover, for processing carried out for journalistic purposes, Member States shall provide for exemptions or derogations from certain parts of the GDPR if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information (Art. 85 para. 2). These regulations under which journalistic activities are exempt from certain data protection requirements are widely referred to as journalistic exemption (Medienprivileg). Their raison d’ être is the role of the media as public watchdog in a democratic society.

However, the wording “journalistic exemption” (Medienprivileg) may be considered somewhat misleading. This is because the rather apodictic expression seems to imply a per se priority of the right of expression over personality rights. Nevertheless, Art. 85 para. 1 and 2 GDPR do not include an absolute exemption, but rather a regulatory mandate for member states to balance interests.

This has been emphasized by a recent decision of the Austrian Constitutional Court calling the Austrian journalistic exemption (Medienprivileg) an “undifferentiated exclusion" violating the fundamental right to data protection.

But let’s start with the circumstances of the case: Media reported about a house search at a private home. Though, not only facts of said search, but also the business card of the affected person was disclosed obviously revealing more personal data than being relevant for the report. Hereon, said person lodged a complaint with the Austrian data protection authority. The authority, however, rejected the complaint "for lack of jurisdiction", applying the very generous regulation in favour of the media that the Austrian legislator had created in Section 9 of the Austrian Data Protection Act. This means that said Section virtually excludes the applicability of the GDPR to the privileged media parties (i.e. media owners, publishers, media employees and employees of a media company or media service). In the following, the person concerned complained to the Federal Administrative Court, which in turn applied to the Constitutional Court.

The Austrian Constitutional Court declared the Austrian journalistic exemption (Medienprivileg) nothing else but unconstitutional putting an end to the broad exemption.

The court ruled that it is in fact illegitimate to entirely exclude data processing by the media for journalistic purposes from the provisions of the Data Protection Act. Interferences with said fundamental right are only permissible if necessary to protect the overriding legitimate interests of others. The Constitutional Court therefore requires the legislator to weigh the interest of the individual in the protection of his or her personal data against the countervailing interests of the media. "Freedom of expression and information [therefore] requires exceptions to data protection if the data protection provisions would be incompatible with the particularities of the exercise of journalistic activity" the Constitutional Court's release reads. "The fundamental right to data protection does not, however, allow, in principle, the freedom of expression and information to take precedence over the protection of personal data for activities carried out for journalistic purposes." The Austrian legislator is now faced with the challenging task of revising this provision in a constitutionally compliant manner until 30 June 2024.

On the German side, the corresponding regulations implementing the journalistic exemption (Medienprivileg) seem to be a tad more differentiated (see for instance Section 12 and 23 Interstate Media Treaty (MStV) and Section 12 State Press Law North Rhine-Westphalia (LPresseG NRW)). For instance, the media has to meet requirements regarding integrity and confidentiality of personal data and under certain circumstances there is a right of access to information about the data being processed. Whether here sufficient balance has been struck between the conflicting interests remains to be seen.

However, the adjustment impulse of the GDPR in the field of media law has also already kept the German courts busy. In particular, it was of interest if the provisions of Sections 22, 23 Law on Copyright in Works of Fine Arts and Photography (KUG) regarding the publication of photos for journalistic purposes prevail over the conflicting provisions of the GDPR. In short: Sections 22, 23 KUG do prevail (Judgment of the German Federal Court of Justice, 7.7.2020 – VI ZR 246/19). But that’s another story.