I’ve been preparing a roundup of some recent privacy stories, with a vague connection. However the most recent story deserves its own post, so the others wait until tomorrow.
The European Court of Justice adds some detail to the body of EU caselaw on the Data Protection Directive, and perhaps goes in a new direction. This case, Satakunnan Markkinapörssi and Satamedia (C-73/07), is a really intriguing one and has had to be read carefully, and I’m still not sure what’s being said. Finland (from where the case comes) is one of those jurisdictions where everyone’s tax and income information is made available for all to see. Radical transparency doesn’t even begin to describe it, though there are very interesting ideas (for another day) of whether this is ‘good’ or ‘bad’ for personal privacy. Interesting business models are built upon this data, including the one in question, which is not just a group of newspapers (Veropörssi) which has the primary purpose of collating and publishing this information (collected from public sources) but also a newer service (as part of the same overarching company) where individual items from the collection are supplied through a SMS service. The Court finds fairly easily that the various activities are the processing of personal data for the purposes of the Directive, including the digitisation and SMS activities which are based on already-in-the-media information. However, the Court goes on to find that, in principle, these activities can be ‘saved’ by the exemption of data processing for journalistic purposes, with some helpful (and extremely broad) definitions of journalistic purposes:
58 First, as the Advocate General pointed out at point 65 of her Opinion and as is apparent from the legislative history of the directive, the exemptions and derogations provided for in Article 9 of the directive apply not only to media undertakings but also to every person engaged in journalism.
59 Secondly, the fact that the publication of data within the public domain is done for profit-making purposes does not, prima facie, preclude such publication being considered as an activity undertaken ‘solely for journalistic purposes’. As Markkinapörssi and Satamedia state in their observations and as the Advocate General noted at point 82 of her Opinion, every undertaking will seek to generate a profit from its activities. A degree of commercial success may even be essential to professional journalistic activity.
60 Thirdly, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. As was mentioned by the Swedish Government in particular, the medium which is used to transmit the processed data, whether it be classic in nature, such as paper or radio waves, or electronic, such as the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’.
61 It follows from all of the above that activities such as those involved in the main proceedings, relating to 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.
62 The answer to the second question should therefore be that Article 9 of the directive is to be interpreted as meaning that the activities referred to at points (a) to (d) of the first question, relating to data from documents which are in the public domain under national legislation, must be considered as activities involving the processing of personal data carried out ‘solely for journalistic purposes’, within the meaning of that provision, if the sole object of those activities is the disclosure to the public of information, opinions or ideas. Whether that is the case is a matter for the national court to determine.
Aside from the privacy questions, this is extremely interesting in the context of the ongoing debate on definitions of journalism and journalists for everything from the protection of sources to access to press galleries. If the rule of thumb for defining journalistic purposes is doing something for the sole purpose of “disclosure of information, opinions or ideas” (which is a phrase that seems a new one in yesterday’s decision, not cited, not familiar to me and not apparent from some quick searching), then the debate on ‘are bloggers journalists?’ is over. In terms of data protection and privacy in the EU, it’s also perhaps a move away from the high water mark that was the Lindqvist case and its broad definition of processing.