The Member States GDPR implementing laws and their stance on the derogation

The GDPR has set the requirements for all Member States, a clear statement that it was important that all Member States transposed the writing of Art. 85 into national legislation.

The following table summarizes the aforementioned standards of the GDPR:

content/EN/TXT/HTML/?uri=CELEX:52012PC0011&from=en; rec. 121 “The processing of personal data solely for journalistic purposes, or for the purposes of artistic or literary expression should qualify for exemption from the requirements of certain provisions of this Regulation in order to reconcile the right to the protection of personal data with the right to freedom of expression, and notably the right to receive and impart information, as guaranteed in particular by Article 11 of the Charter of Fundamental Rights of the European Union. This should apply in particular to processing of personal data in the audiovisual field and in news archives and press libraries. Therefore, Member States should adopt legislative measures, which should lay down exemptions and derogations which are necessary for the purpose of balancing these fundamental rights.

Such exemptions and derogations should be adopted by the Member States on general principles, on the rights of the data subject, on controller and processor, on the transfer of data to third countries or international organisations, on the independent supervisory authorities and on co-operation and consistency. This should not, however, lead Member States to lay down exemptions from the other provisions of this Regulation. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. Therefore, Member States should classify activities as "journalistic" for the purpose of the exemptions and derogations to be laid down under this Regulation if the object of these activities is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They should not be limited to media undertakings and may be undertaken for profit-making or for non-profit making purposes”.

85 ECtHR; Case C-73/07, Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy, Satamedia Oy; December 16^th 2008; par. 56.

41 Table 4: Standards set by the GDPR

With due remembrance that there is not an official English translation to most of the national GDPR implementation legislation, therefore there might be some cues that could potentially be lost in translation, the EU Member States have the adopted the writing that can be found within Annex I within their national implementing legislation.

The type of derogation set by the Member States can be summarized in the following chart:

Chart 1: Derogation Adopted by Member States

As per the above chart, we are able to analyse that only two countries have not set any further derogation then what was set in the GDPR (Germany and Croatia), fourteen have

2

6

8

2 2

1

4

2 0

(a) 1 (b) 0.83 (i) (b) 0.83 (ii) (c) 0.67 (d) 0.5 (e) 0.33 (f) 0.17 (i) (f) 0.17 (ii) (g) 0

Derogation Adopted by Member States

Chapter IV – Journalistic Derogation

42 either not set a specific derogation but have added to what was set in the GDPR or provided a derogation but not to the entirety of what was set out in Art. 85 GDPR, two have a derogation as long as it falls within specific circumstances and complies to certain rules, two have set their stance based on the existence of a public interest, one also based on public interest but less strict, six have either set the derogation to some types of media but restrictions to others or a derogation is provided based on ‘minimal substantive content’, and no countries have adopted a total exclusion.

The fact that no Member States have adopted for a total exclusion does not come as a surprise, since it poses as common grounds that the freedom of expression/journalism and the right to a private life/privacy can often clash. Meaning that, despite having to safeguard the safety and the fundamental rights of their citizens, they also acknowledge the importance of the freedom of expression within the journalistic activity and the role it plays in society.

Regarding derogation type b) 0.83, which is the most common, Member States have mostly chosen to articulate it differently to what is stated in the GDPR and have added what they believe should be, either for explanatory purposes or to create a link between their implementing act and their national existing legislation, or have chosen not to apply what was set in the GDPR in full as it might not ‘suit’ their national legislation.

I believe the one to be the most suitable to be the Portuguese one, as it not only abides by what was set in the GDPR, but also recognizes the delicate stance that is needed regarding special categories of data presented in Art. 9 of the GDPR. Aided by reading that “The exercise of freedom of expression does not legitimize the disclosure of personal data such as addresses and contacts, with the exception of those that are generally known”, which highlights exactly the triggering point of this dissertation – with due respect to all the principles and fundamental rights previously mentioned, no address should be directly mentioned or easily inferred through the exercise of freedom of expression of the media.

4. Closing Remarks

In this Chapter, having gone through the historical presence of the journalistic derogation, to showcase that it is not a new concern/action brought by the GDPR and recent changes

43 in paradigm, but has been a concern of past legislators as well. This derogation is one of the most important ones within the GDPR as it acknowledges not only the rights that can possibly be in conflict as product of the journalistic activity, knowing the freedom of expression, of information and of press are key pillars in a democratic society, but the uniqueness of each Member State.

This last point, having been acknowledged in the writing of Art. 85 of the GDPR, is what was highlighted within table 5, available in Annex I, to show the differences of derogations implemented by the Member States, who are bound to the same European legislative texts, but also show the unique stance and historical influences of each of them. This table will be used, albeit in a sample, to interpret a real article, that has been published in the United Kingdom, in the next Chapter.

Chapter V– Real Life implications