Striking a Balance: Interpreting the Journalistic Exemption of Article 85 GDPR

The purpose of the GDPR is to protect the fundamental rights and freedoms of natural persons – especially the right to personal data protection – and to harmonise European personal data regulation. Article 85 of the GDPR, which regulates processing and freedom of expression and information, is an exemption to the harmonising aim, leaving national discretion to Member States as to how to reconcile the right to protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes and purposes of academic, artistic or literary expression.

However, varying approaches to the ‘journalistic exemption’ across Member States have led to uncertainty and raised concerns about both privacy and freedom of expression. Additionally, the evolving nature of journalism – where non-traditional actors such as NGOs, private individuals, and even AI can disseminate information globally – adds complexity to the interpretation of this exemption. This piece focuses on the above-mentioned aspect.

The courts are facing a difficult task when judging these cases. In addition to the Court of Justice of the European Union, the European Court of Human Rights also has its say in this ongoing saga. While traditional media outlets and traditional journalism may have clearer grounds for claiming ‘journalistic exemption’, for ordinary people, organisations, and the like, many uncertain situations would merit protection of freedom of expression, but therein interpretations are uncertain. On the other hand, for example, traditional media in Finland questionably use the journalistic exception to widely publish people's tax information on the internet in a way that in itself cannot be considered journalism.