Case law: data processing
The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.
The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).
C-73/07, Tietosuojavaltuutettu [Finnish DP ombudsman] v. Satakunnan
Markkinaporssi Oy and Satamedia Oy, 16.12.2008
Reference for preliminary ruling. Defendant 1 (a) collected public PD (name of persons whose income exceeds threshold, amount of earned and unearned income, wealth tax levied) from Finnish tax authorities and (b) published extracts in regional newspaper each year. Newspaper says PD can be removed on request without charge. Defendant 1 also (c) transferred the data on CD ROM to Defendant 2 (owned by same shareholders) which (d) disseminated them by text messaging system. Contracted with mobile telephony company to send text messages allowing users to receive information published in the newspaper; PD removed on request. Questions referred: (1) whether collection, publication, transfer of CD ROM and text messages constitutes processing of PD; (2) whether it is processing for solely journalistic purposes within Article 9 of Directive 95/46; (3) whether Article 17 and principles of Directive 95/46 preclude publication of data collected for journalistic purposes and its onward transfer for commercial purposes; (4) whether PD that has already been published in the media is
outside scope of Directive 95/46.
Processing: All 4 types of activities constitute processing.
Scope: Only two exceptions to scope, set forth in Article 3(2). First indent: security and criminal law=activities of the state. Second indent: processing by a natural person in course of a purely personal or household activity, concerns activities in course of private or family life of individuals. Activities (c) and (d) are activities of private companies, not within the scope of Article 3(2). A general derogation from application of directive in respect of published information would largely deprive directive of its effect. Thus activities (a) and (b) also not within scope of Article 3(2).
Processing for solely journalistic purposes: Article 1 of Directive indicates that objective is that MSs should, while permitting free flow of PD, protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy, with respect to processing of their PD. That objective can only be pursued by reconciling those fundamental rights with fundamental right to freedom of expression. Article 9’s objective is to reconcile the two rights. MSs required to provide derogations in relation to protection of PD, solely for journalistic purposes or artistic or literary expression, which fall within fundamental right to freedom of expression, insofar as necessary for reconciliation of the 2 rights. To take account of the importance of the right of freedom of expression in every democratic society, it is necessary to interpret notions of freedom, such as journalism, broadly. Derogations must apply only insofar as strictly necessary.
Fact that publication is done for profit making purposes does not preclude publication from being considered as “solely for journalistic purposes.” Medium used is not determinative of whether “solely for journalistic purposes.” Thus activities may be classified as “journalistic” if their sole object is the disclosure to the public of information, opinions or ideas, irrespective of the medium used to transmit them.
Credits and acknowledgment go to Laraine Laudati, OLAF DPO.
Stay tuned for the case law.
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