New EU Data Rules Would Collide With Fundamental Rights

Suggested new EU rules for data protection might not only affect blogs, Facebook updates and tweets. Authorities would also have to redact official archives by deleting names in documents, while member states were told to find their own way to secure fundamental rights.

Member states asked to build their own safeguards

The European Commission explicitly asked member states to create their own exemptions in the proposed data legislation then under negotiation — without them, there would be no safeguards for fundamental rights. The proposed rules would apply to all kinds of publications accessible to an "unlimited number of individuals", such as homepages, blogs and open Facebook updates; only purely private networks would be unaffected, under what is known as the "household exemption". Member of the European Parliament Anna Hedh (Socialists and Democrats) asked whether the Commission really intended to limit freedom of expression, referring to a 2003 decision by the EU court, the Lindqvist case. The answer, in short, was yes.

Commissioner Viviane Reding, responsible for the data protection package, explained: "Accordingly the interpretation of the current 'household' exemption in the Lindqvist case applies, so that where personal data are accessible to an unlimited number of individuals, the processing falls under the proposed Regulation." She continued: "However, for reconciling the right to the protection of personal data with the rules governing freedom of expression, Member States are obliged under the proposed Regulation to provide exemptions or derogations from general data protection rules." In effect, the EU would first regulate free speech in digital form, and member states would then have to ensure this did not harm freedom of expression.

No harmonised rights

The logic behind such seemingly reversed legislation was that the EU had competence to regulate data protection but not to harmonise fundamental rights, which enjoy very different protection across member states due to differing historical and cultural backgrounds. "I guess we should be satisfied that fundamental rights are not harmonized according to a common denominator," reflected David Törngren, a legal adviser at the Swedish Ministry of Justice. The threat to fundamental rights such as freedom of expression and access to public information was not only a concern of some member countries or individual parliamentarians: the Irish EU presidency had put the "household exception" on the agenda for an informal meeting of justice ministers in Dublin on 17–18 January, where, according to a presidency spokesperson, there was broad support for "a practical and reasonable approach" — what that meant remained to be seen.

Freedom for some, or for all

In the regulation the Commission suggested that the new data protection rules should not apply for "journalistic, artistic or literary purposes." That was criticised by, among others, the EU data protection supervisor Peter Hustinx and the EU Agency for Fundamental Rights, who argued that freedom of expression must not be limited to certain categories such as journalists. Concern over the supervisor's warnings about access rights is set out in a later report on threats to access rights. The Parliament's main rapporteur on the proposal, Jan Philipp Albrecht (The Greens), took the same approach in a very extensive draft report — 215 pages containing 350 amendments in all. Yet even if freedom of expression were granted not only to journalists, artists and authors, it still remained for member states to make sure the right was respected, and the right of access to information would be placed under similar constraints.

A mounting conflict

The proposal offered no justification for keeping and processing official records as part of a transparency policy. On the contrary, the rules would force authorities to ensure that personal data such as names were redacted in archives otherwise held "for the purposes of historical, statistical or scientific research". Redacting names, and rejecting access on the presumption of protecting personal data, was in line with the Bavarian Lager case, in which the European Court of Justice endorsed the Commission's refusal to reveal the names of participants in a lobbying meeting. In the proposed data regulation, access to documents was acknowledged as a legitimate cause in the preamble, "to be taken account for" (Recital 18), but the right was not granted in a legally binding article. Rapporteur Albrecht did suggest somewhat stronger wording on the right of access — but still only in the preamble.

One out of 28, but wider effects

In Sweden, the right of access to official documents had been part of the constitution since 1766, and Swedish officials therefore feared a mounting constitutional conflict. This might look like a dilemma relevant to only one of 27, soon to be 28, countries. But because access rules for documents held by EU institutions also refer to the protection of personal data, the proposed rules would most likely have EU-wide effects. Negotiations on new access rules had come to a halt at the end of the Danish presidency the previous spring, and the Irish presidency had now indicated it was considering putting the issue back on the agenda. If nothing else, parallel negotiations on the two packages might make the conflict between data protection rules and access to information more visible than before.

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