Reconciling protection of personal data and journalistic freedom

www.helsinki.fi/yliopisto
Reconciling protection
of personal data and
journalistic freedom
– mission impossible?
Päivi Korpisaari, Professor in Communication Law
University of Helsinki, Faculty of Law
(c) Päivi Korpisaari, SLS Dublin 8.9.2017 1

Content
• Freedom of Expression
• Right to Private life
• Right to Private Life
• Personal Data Protection
• Balancing FoE & PDP: Case Satakunnan
Markkinapörssi Oy and Satamedia v. Finland
• Conclusions / Discussion

• Freedom to hold opinions
and to receive and impart
information and ideas
• “one of the essential
foundations of a
democratic society and
one of the basic conditions
for its progress and each
individual's self-fulfilment”
(for example Satakunnan
Markkinapörssi and
Satamedia Oy v. Finland,
GC)
Freedom of Expression, ECHR
Art 10
3(c) Päivi Korpisaari, SLS Dublin 8.9.2017
• Right to obtain
information has been
guaranteed in casu on
different grounds

Freedom of Expression
• Press´ task is to impart information and ideas on all
matters of public interest and act like a public watchdog
(taking into account duties and responsibilities)
• Recently applied also to NGO’s
• Protection of anonymous expression and information
sources
• Gathering of information is an essential preparatory step
in journalism and an inherent, protected part of press
freedom
• Subject to exceptions which must be construed strictly,
and the need for restrictions must be established
convincingly

Right to private life

Right to Private life, art 8
• Right to family life, home, secrecy of correspondence and
personal data protection
• Physical, psychological and moral integrity of a person
• Also activities of professional or business nature
• Right to establish and develop relationships with other human
beings
• Personal autonomy
• Right to live privately, away from unwanted attention
• Right to personal information, which individuals can legitimately
expect should not be published without their prior consent
• Also persons that are known to the general public are able to
count on a legitimate expectation of protection their private life
• Protection of reputation and honour, if the attack attains a certain
level of gravity

Right to Private Life and
personal data protection
• The fact that information is already in the public domain
will not necessarily remove the protection of Art 8
• If there has been compilation of data on a particular
individual, processing or use of personal data or
publication of the material concerned in a manner or
degree beyond that normally foreseeable, private life
considerations arise
• ”The protection of personal data is of fundamental
importance to a person’s enjoyment of his or her right to
respect for private and family life, …. The domestic law
must afford appropriate safeguards to prevent any such
use of personal data as may be inconsistent with the
guarantees of this Article” (S. and Marper v. UK)

Personal data
protection

Personal data protection
• ”Article 8 of the Convention thus provides for the right to a
form of informational self-determination, allowing
individuals to rely on their right to privacy as regards data
which, albeit neutral, are collected, processed and
disseminated collectively and in such a form or manner
that their Article 8 rights may be engaged.” (Satakunnan
Markkinapörssi Oy and Satamedia Oy v. Finland)
• Compare: Protection of reputation and honour, if the
attack on personal honour and reputation attains a certain
level of gravity (Sidabras and Džiautas v. Lithuania (; Axel
Springer AG v. Germany)

Charter of fundamental rights of
the EU
• Respect for private and family life (7 Art.)
• Protection of personal data (8 Art.)
• Freedom of expression and information (Art. 11)

• Res. 4. ”The processing of
personal data should be
designed to serve
mankind. The right to the
protection of personal data
is not an absolute right; it
must be considered in
relation to its function in
society and be balanced
against other fundamental
rights, in accordance with
the principle of
proportionality.”
• Art. 4(1) Personal data:
any information relating
to an identified or
identifiable natural
person
• Identified directly or
indirectly
GDPR
11(c) Päivi Korpisaari, SLS Dublin 8.9.2017

GDPR, introduction
• 153) Law should reconcile the rules governing freedom
of expression and information, including journalistic,
academic, artistic and or literary expression with the
protection of personal data
• Processing of personal data solely for journalistic
purposes (…) should be subject to derogations or
exemptions from certain provisions of this Regulation if
necessary to reconcile the right to the protection of
personal data with the right to freedom of expression
and information
• Necessary to interpret notions relating to that freedom,
such as journalism, broadly

GDPR, Art. 85: Processing and
freedom of expression and
information
• Member States shall by law reconcile the right to the
protection of personal data pursuant to this
Regulation with the right to freedom of expression
and information, including processing for journalistic
purposes and the purposes of academic, artistic or
literary expression (see also res. 153)
• Exemptions or derogations from many Chapters if
they are necessary
• Each Member State shall notify to the Commission
the provisions of its law which it has adopted
pursuant to this topic

ECtHR: Satakunnan
Markkinapörssi Oy and
Satamedia Oy v. Finland

Satakunnan Markkinapörssi etc.
GC 27.6.2017
• Veropörssi magazine had published taxation data on
1.2 million persons’ taxable income and assets.
Among those persons were well-known
personalities, well-earning persons, ordinary citizens
and also low-income ordinary people
• The magazine had been prohibited from publishing
the tax data in this way and sending the tax
information by SMS message for a fee of few euros
to those who requested information
• Companies alleged that their right to freedom of
expression had been violated (and also breach of Art
6, which will not be discussed further)

Court of Justice (EU; the same
companies, earlier process)
• Importance of the right to freedom of expression: broad interpretation
of journalism
• Protection of the fundamental right to privacy requires that the
derogations and limitations in relation to the protection of data must
apply only insofar as is strictly necessary
• ”… activities such as those carried on by Markkinapörssi and
Satamedia and which concern data from documents which are in the
public domain under national legislation may be classified as
‘journalistic activities’ if their object is the disclosure to the public of
information, opinions or ideas, irrespective of the medium which is
used to transmit them. They are not limited to media undertakings and
may be undertaken for profit-making purposes.”

ECtHR: Publishing taxation data
concerned private life
• Taxation data collected, processed and published by
the applicant companies in Veropörssi, providing
details of the taxable earned and unearned income
as well as taxable net assets, clearly concerned the
private life of individuals, even though according to
Finnish law, that data could be accessed, in
accordance with certain rules, by the public

Lawfulness
• Legal basis in domestic law
• Quality of the law
• Accessible to the person concerned
• Foreseeable as to its effects
• “in the absence of a provision in the domestic legislation
explicitly regulating the quantity of data which could be
published and in view of the fact that several media outlets
in Finland were also engaged in publication of similar
taxation data to some extent, the question arises whether
the applicant companies could be considered to have
foreseen that their specific publishing activities would fall
foul of the existing legislation, bearing in mind in this
connection the existence of the journalistic purposes
derogation”

Lawfulness
• As media professionals applicants should have been
aware of the possibility that the mass collection of data
and its wholesale dissemination might not be considered
as processing “solely” for journalistic purposes
• Instead of complying with the request for more information
of the Personal Data Ombudsman, applicants
circumvented the usual route and collected the data
manually at the local tax offices
• According to Guidelines for Journalists (which must have
been familiar to applicants) the use of information
contained in public documents did not always mean that
the information was freely publishable
• Limitation was prescribed in law

Legitimate aim
• Many people had contacted Data Protection
Ombudsman
• Arguable that all Finnish taxpayers were affected
• Interference with applicants´right to freedom of
expression pursued the legitimate aim of protecting
“the reputation or rights of others”

Necessary in a democratic society
• Core questions
• Whether the interference with the applicant´s right to
freedom of expression was “necessary in a democratic
society” and
• Whether there was a fair balance between freedom of
expression and right to respect for private life

Margin of appreciation
• The outcome should not vary according to whether it
has been lodged with the Court under Art 8 or Art 10
• If the national authorities have made the balancing
test in conformity with the criteria of the Court’s case-
law, strong reasons to depart from that
• The Court’s task is not to take the place of the
national courts

Balancing criteria
• Contribution to a debate of public interest
• The degree of notoriety of the person affected
• The subject of the news report
• The prior conduct of the person concerned
• The content, form and consequences of the
publication
• The way in which the information was obtained and
its veracity
• The gravity of the penalty imposed or the amount of
compensation

Contribution to a debate of
public interest
• Matters which affect the public to such an extent that it
may legitimately take an interest in them
• Publication of taxation data in the manner and to the
extent done by the applicant companies did not contribute
to such a debate
• The journalistic purposes in the Finnish Personal Data Act
are intended to allow journalists to access, collect and
process data in order to ensure that they are able to
perform their journalistic activities, which are essential in a
democratic society
• Distinction: 1) processing of data for journalistic purposes
2) dissemination of the raw data to which the journalists
were given privileged access

Subject of the impugned publication
and how well-known were the
persons concerned
• The data published in Veropörssi comprised the
surnames and names of natural persons whose
annual taxable income exceeded 10 000-13 500 per
year as well as details relating to their taxable net
assets
• 1.2 million natural persons were the subject of the
Veropörssi publication. Only very few were
individuals with a high net income, public figures or
well-known personalities
• “The more they published the less they interfered” –
argument didn´t succeed

Manner of obtaining the
information and its veracity
• Published information was collected in the local tax
offices and was accurate
• The data were not obtained by illicit means, but
applicants had a policy of circumventing the normal
channels open to journalists to access taxation data
and, accordingly, the checks and balances
established by the domestic authorities to regulate
access and dissemination
• The data were then published in raw form, as
catalogues or lists

Content, form and consequences of
the publication and related
considerations
• The fact that the data in question were accessible to the public did
not mean that they could be published to an unlimited extent
• Publishing the data in a newspaper, and further disseminating that
data via an SMS service, rendered it accessible in a manner and to
an extent not intended by the legislator
• Gathering of information is an essential preparatory step in
journalism and an inherent, protected part of press freedom
• Supreme Administrative Court did not seek to interfere with the
collection by the applicant companies of raw data, an activity which
goes to the heart of press freedom, but rather with the dissemination
of data in the manner and to the extent outlined above
• Finland has an exceptionally wide access to taxation data => wide
margin of appreciation

Gravity of the sanction imposed
on the journalists or publishers
• The applicants were not prohibited from publishing
taxation data or from continuing to publish
Veropörssi, albeit they had to do so in a manner
consistent with Finnish and EU rules on data
protection and access to information
• The fact that, in practice, the limitations imposed on
the quantity of the information to be published may
have rendered some of their business activities less
profitable is not, as such, a sanction within the
meaning of the case-law of the Court

Conclusion
• No violation of Art 10
• The reasons relied upon were both relevant and
sufficient to show that the interference complained of
was “necessary in a democratic society” and that the
authorities of the respondent State acted within their
margin of appreciation in striking a fair balance
between the competing interests at stake

Conclusions and discussion
• In my opinion the outcome of the judgment is fair
and just – what would be left of personal data
protection and privacy if publishing raw data in this
extend would be allowed
• What is journalism
• Or how do we define the academic, artistic or literary
purposes
• How to prevent misuse of those purposes
• What kind of national legislation is needed

www.helsinki.fi/yliopisto 31(c) Päivi Korpisaari, SLS Dublin 8.9.2017
Thank you for your attention
Päivi Korpisaari @PKorpisaari
• Publications and activities:
https://tuhat.helsinki.fi/portal/fi/person/ptiilikk
• academia.edu: Päivi Korpisaari
• paivi.korpisaari@helsinki.fi

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