Balancing the Rights to Data Protection and Freedom of Expression and Information by the Court of Justice of the European Union
| DOI | 10.1177/1023263X1602300302 |
| Published date | 01 June 2016 |
| Author | Magdalena Jozwiak |
| Date | 01 June 2016 |
| Subject Matter | Article |
404 23 MJ 3 (2016)
BALANCING THE RIGHTS TO DATA
PROTECTION AND FREEDOM OF EXPRESSION
AND INFORMATION BY THE COURT OF
JUSTICE OF THE EUROPEAN UNION
e Vulnerability of Rights in an Online Context
M J*
ABSTRACT
e main legislative instrument for the protection of personal data in the EU is the Data
Protection Directive. It has an extreme ly wide scope because most data that is shared can be
classed as personal data and most activities concerning data can be seen as the processing
of it. It also covers a large amount of modern co mmunication methods that fall under the
protection of the right to freedom of expression and information under Article11 of the
Charter of Fundamental Right of the European Unions. To address the ten sion between the
rights, the Data Protection Directive provides for di erent mechanisms to balance them.
is article de parts from the premise that European courts prioritize ce rtain interests in a
given social context through this balanc ing exercise. e purpose of this article is to ver ify
how the Court of Justice of the European Union (CJEU) sets those priorities where the r ights
to data protection and freedom of expression and information con ict, especially in the
context of developing communication technolog ies.
Keywords: balanci ng; data protection & freedom of expression; freedom of informat ion;
Google Spain; Satamedia
* PhD Candidate at t he Department of Tran snational Lega l Studies, Vrije Universiteit A msterdam,
Amsterdam, the Netherlands.
Balancing t he Rights to Data Protec tion and Freedom of
Expression and I nformation by the CJEU
23 MJ 3 (2016) 405
§1. INTRODUCTION
e ‘breath-taking’1 scope of the Data Protection Directive means that most data that
is shared can be considered personal and most activities relating to it can be seen as the
processing of it. It also covers a large amount of modern communication methods that
fall under the protection of the right to freedom of expression and information under
Article11 of the Charter of Fundamental Right of the European Union (EU Charter).2
As noted by Erdos, ‘from its incept ion, the entirety of European data protect ion has been
correctly understood to be in inherent tension with such rights’.3 To address this issue
the Data Protection Directive4 provides for di erent mechanisms to balance the two
rights.
is article departs from the premise that the courts prioritize certain interests in
a given social context through their balancing exercise.5 e purpose of this article is
to assess how the Court of Justice of the European Union (CJEU) sets these priorities
where the right to data protection con icts with freedom of expression, especially in
the context of developing communication technologie s. Although in the cases dis cussed
in this article the CJEU does not perform the ba lancing exercise itself but rather leaves
it to the Member States, it plays a decisive role in interpreting the applicable law. is
approach could be seen as re ect ive of a broader vision of the role that the rig ht to data
protection has to play in the EU legal system and its position vis-à-vis the competing
rights to freedom of expression a nd information.
is article dis cusses the legal fra mework of the right to data protection and the r ights
to freedom of expression and inform ation in EU law and clari es the r ules applicable to
the process of balancing of t hese rights pursuant to the provisions of the Data Protect ion
Directive (Section 2). Examples of two di erent mechanisms for balancing – the specia l
purposes exemption and the right to be forgotten – are discussed in the context of the
most representative examples of this: the cases Satamedia6 and Google Spain7 (Section
1 D. Erdos, ‘From the Scyl la of restriction to t he Charybd is of licence? Explori ng the scope of the “specia l
purposes” freedom of expres sion shield in European data protection’, 52 Common Market Law Review
(2015), p.121.
2 Charter of Fund amental Rights of the Europ ean Union (herea er ‘EU Cha rter’), [2000] OJ C 364/01
and [2010] OJ C 83/389.
3 D. Erdos, 52 Common Market L aw Review (2015), p.145.
4 Directive 95/46/EC of t he European Parli ament and of the Counc il of 24October 1995 on the protect ion
of individuals with regard to the processing of personal data and on the free movement of such data,
[1995] OJ L 281/31.
5 See T. Aleiniko , ‘C onstitutional Law in the Age of Bala ncing’, 96 e Yale Law Journal (1987); R.
Plides, ‘Why rights are not trumps: social mean ings, expressive harms, and constitutionali sm’, 27
Journal of Lega l Studies (1998); N.S. Siegel, ‘ e Virtue of Jud icial Statesmans hip’, 86 Texas Law Review
(2008), p.974. See also R. Pos t, ‘Law and Cultur al Con ic t’, 78 Chicago Kent Law Revie w (2003).
7 Case C-131/12 Google Spain and Google, EU:C:2 014:317.
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