GDPR : Article 85 - Processing and Freedom of Expression and Information

The General Data Protection Regulation (GDPR), which came into effect in May 2018, has revolutionized data protection laws in the European Union (EU). One of the key articles within the GDPR is Article 85, which deals with the delicate balance between data processing and the fundamental rights of freedom of expression and information. In this blog, we will delve into the intricacies of GDPR Article 85, exploring its importance, its implications for businesses and individuals, and how it navigates the often complex terrain of privacy and freedom of expression.

Understanding GDPR Article 85

Article 85 of the GDPR is titled "Processing and freedom of expression and information." It is situated within Chapter IX, which covers specific provisions for processing personal data for journalistic, academic, artistic, or literary purposes. Essentially, Article 85 seeks to safeguard the vital principles of freedom of expression and information while still upholding individuals' data protection rights.

The Importance of Freedom of Expression and Information

Freedom of expression and information are cornerstones of democratic societies. They ensure that individuals can voice their opinions, access information, and participate in public discourse without undue interference. These rights are protected by various international and national laws, including the European Convention on Human Rights.

In the digital age, these rights are exercised through various means, including the media, social networks, blogs, and other online platforms. Consequently, it's crucial to strike a balance between protecting individuals' personal data and enabling the free flow of information and ideas.

The GDPR's Data Protection Principles

The GDPR is built upon several fundamental data protection principles, such as consent, purpose limitation, data minimization, and accountability. These principles require organizations to collect and process personal data responsibly and ethically. However, they can sometimes conflict with the exercise of freedom of expression and information.

For example, when journalists investigate corruption scandals or report on public figures, they may need to process personal data to fulfill their investigative duties. In such cases, GDPR Article 85 becomes crucial in determining how to reconcile these conflicting rights.

Balancing Act: GDPR Article 85

GDPR Article 85 is a testament to the EU's commitment to striking a balance between data protection and freedom of expression and information. It acknowledges the importance of these rights and provides a framework for their harmonious coexistence. Here are some key aspects of Article 85:

• Legal Basis: Article 85 provides a legal basis for EU Member States to adopt specific measures to reconcile data protection with freedom of expression and information. This includes derogations, limitations, and exemptions from certain GDPR provisions.

• National Laws: It empowers Member States to enact specific laws to reconcile the two rights, taking into account their national context and values. These laws must be necessary and proportionate to achieve the intended balance.

• Journalistic, Academic, Artistic, and Literary Purposes: Article 85 explicitly mentions these purposes, recognizing that they often require the processing of personal data. For example, journalists might need to process data to verify facts in their reporting.

• Safeguarding Individuals: While promoting freedom of expression, Article 85 ensures that personal data is processed in a manner that respects individuals' rights. It calls for measures to safeguard individuals' dignity, integrity, and legitimate interests.

• Transparency and Accountability: Article 85 does not grant carte blanche to data processors. It emphasizes the importance of transparency and accountability in data processing, even in contexts where freedom of expression is at stake.

• Striking the Right Balance: Ultimately, Article 85 aims to strike a delicate balance between protecting personal data and upholding the fundamental rights of freedom of expression and information. This balance may vary from one EU Member State to another, reflecting their diverse legal and cultural contexts.

Implications for Businesses and Individuals

• Journalistic Freedom: GDPR Article 85 is particularly important for media organizations and journalists. It allows them to pursue investigative journalism and report on matters of public interest without undue fear of violating data protection regulations. This is essential for a vibrant and informed democracy.

• Artistic and Literary Expression: Authors, artists, and scholars also benefit from Article 85's provisions. They can create and share content that explores diverse perspectives and engages with personal data, such as biographies or historical research.

• Public and Private Entities: Article 85 has implications beyond the realm of journalism and the arts. It can apply to businesses, non-profit organizations, and individuals who engage in public discourse and the dissemination of information. For example, bloggers and social media influencers may rely on these provisions to protect their right to express their opinions.

• Responsibility and Accountability: While Article 85 facilitates freedom of expression, it does not absolve organizations or individuals of their responsibility to handle personal data with care. They must still adhere to the GDPR's core principles and ensure that data processing is necessary and proportionate to the intended purpose.

• National Variations: As mentioned earlier, GDPR Article 85 recognizes that the balance between data protection and freedom of expression may vary from one EU Member State to another. This acknowledges the importance of cultural and legal diversity within the EU while maintaining a consistent commitment to fundamental rights.

Conclusion

GDPR Article 85 stands as a testament to the European Union's commitment to protecting fundamental rights while navigating the complexities of the digital age. It recognizes the importance of freedom of expression and information in democratic societies, allowing for the responsible and ethical processing of personal data for journalistic, academic, artistic, and literary purposes. As we move forward in an era of ever-evolving technology and communication, it is essential to uphold both data protection and the free exchange of ideas, and Article 85 provides a framework for achieving this delicate balance. This article serves as a cornerstone in the ongoing conversation about how to harmonize the rights to privacy and freedom of expression in our increasingly interconnected world.