The relationship between data protection and freedom of expression are in constant tension. A great part of the public conversation requires personal data, as we discuss public officials’ activities, discourses and some of the personal aspects of their lives that we consider publicly relevant. On the other hand, data protection law imposes obligations on those who collect, process, and disseminate that information, in automated or semi-automated ways. Under the standards of Linqvist, placing information on the internet is an activity that is performed at least partially through automatic means, and is therefore within the scope of the GDPR. In this context, the GDPR imposes restrictions on all online speech that contains personal data, and the tension between freedom of expression and data protection becomes more pressing.
European law has confronted this tension questions through the so-called “journalistic exemption” of data protection law. In a recent article published in Law, Innovation and Technology, I examine how the Court of Justice of the European Union and the European Court of Human Rights have interpreted this exemption and argue that their approach relies on an outdated conception of the public sphere. Readers interested in the full analysis can access the article here.
Under Article 85(2) of the GDPR and the art. 9 of the DPD, member states should legislate in a way that exempts data processing for journalistic personal data for journalistic purposes from some of the obligations imposed by the GDPR. The idea is simple: if data protection rules were applied without exceptions, journalism would become extremely difficult. However simple this may sound, it is not clear what counts as journalism, a question both the ECJ and the ECtHR had to face. The arguments they advanced, however, rely on a descriptively outdated and normatively problematic conception of the public sphere.
While the paper delves into the details of the cases, I would like to mention two examples of how European Courts draw the limits of the journalistic exemption. In Satamedia, the ECtHR traced an interesting distinction between publishing raw and analyzed data. According to the court, since analyzing data is one of the main tasks of journalism, the publication of data without analysis is not a journalistic activity and therefore does not deserve protection.
At first glance, this distinction may appear sensible. Yet it quickly becomes difficult to sustain. Much of contemporary public discussion depends on the circulation of information that is not accompanied by extensive analysis. Consider the video of George Floyd’s murder. The recording contains no analysis, no commentary, and no journalistic framing. Yet it became one of the most politically consequential pieces of information of the last decade. The idea of journalism that seems to be in the back of the Court’s mind, then, is that the only kind of journalism that deserves protection is the one that happens in traditional newsrooms, rather than a bottom-up informational process
A similar pattern can be observed in the famous Google Spain. There, the ECJ claimed that Google was not protected by the journalistic exemption, as search engines only classify data and do not engage in journalistic activities. As a consequence, Google Spain is subjected to the ordinary rules of data protection law and does not deserve the protection guaranteed to activities with special purposes such as journalism.
These cases do not emerge in the vacuum, but reflect a broader understanding of how the public sphere operates. At the core of these decisions lies a familiar image of democracy: journalists investigate, citizens consume information, and public debate follows. The public, in turn, is the audience of this news. In this picture, journalism functions as the primary intermediary between facts and citizens. This assumes, of course, a very particular division of labor within the public sphere, as the ECtHR demands journalism to take care of the entire chain of production, as it does not allow that one actor publishes data and another analysis it. The difficulty is that this is no longer how the public sphere works.
First, today’s public sphere is characterized by distributed participation. Information is produced, shared, interpreted, and reinterpreted by a wide range of actors. Citizens, civil society organizations, researchers, bloggers, influencers, and digital platforms all contribute to the circulation of publicly relevant information. Public debate increasingly emerges from networks of interaction rather than from a small group of professional gatekeepers. An interpretation of the journalistic exemption that limits protection to traditional journalism thus leaves unprotected many forms of expression that are relevant for the public conversation. The centrality of new forms of communication has even been recognized by the ECJ in Google Spain, where the Court recognized the central role that search engines play in making information accessible while simultaneously excluding them from the scope of the journalistic exemption.
The difficulty in defining the contours of journalism is not born in the European Court’s activity. The GDPR demands judges to evaluate what counts as journalism, and courts follow. But this focus on journalism may itself be misguided. The democratic value of freedom of expression does not lie in protecting a particular profession or a closed set of activities. It lies in protecting the communicative practices through which citizens participate in public life. So, it is possible that some forms of journalism do not deserve protection, while some activities that could hardly be classified as journalistic do.
Freedom of expression is a right that protects the participation of citizens as authors of their own law through the public sphere. A democratically legitimate law demands that citizens are free to engage in public conversation, and they can therefore claim authorship on the law. Under this account, freedom of expression is not only valuable because citizens are informed by journalists or other gatekeepers, but because they are active in public discussion, which gives legitimacy to the law that is born in this discussion. In associating freedom of expression with journalism, thus leaving out countless other kinds of publicly relevant expressions, the GDPR takes a narrow view on the functioning of the public sphere, that leaves broader forms of participation without protection.
In this context, the problem is not limited to how courts conceptualize journalism, but to the general tension between data protection and freedom of expression. To solve this tension, we should not assume that freedom of expression is linked to a close set of activities, but it rather protects acts that perform a certain role in the public sphere. The tension, thus, should focus on the role the activity under scrutiny performs rather than on whether it fits within a defined activity. This approach is not alien to European Courts, as the ECtHR did not extend the journalistic exemption protection to sectionalist journalism because it didn’t perform any publicly valuable function, although its name rightly indicates it is a form of journalism. Moreover, the ECJ took a similar approach to the journalistic exemption in Buivids, where the Court extended the protection of the journalistic exemption to the publication of a video because it had public value. Thus when focusing on the role of speech rather than their fitting within the categories of the GDPR, the European Court already started taking a road that would lead to a better approach to the tension between freedom of expression and data protection.
European courts have struggled to interpret the journalistic exemption because they inherited a difficult task from the GDPR itself. The regulation asks judges to determine what counts as journalism, and courts have responded by drawing boundaries around that category. Yet the real issue may lie elsewhere. The challenge of balancing between data protection and freedom of expression does not lie on determining the limits of a set of activities, but on the functions that some speeches perform within the public sphere. In this way, freedom of expression will play a role in this balance that reflects its underlying normative value for a constitutional democracy.
Read full article here.
Images: AI-generated
Suggested citation:
Emiliano Vitaliani, ‘Why the GDPR Still Thinks We Live in a Newspaper World. European Courts, the Journalistic Exemption, and the Public Sphere’ (Comparative Digital Law Blog, 18 June 2026) <https://lawandtech.ie/why-the-gdpr-still-thinks-we-live-in-a-newspaper-world-european-courts-the-journalistic-exemption-and-the-public-sphere>.
About the author:
Emiliano Vitaliani is a Fox Fellow at University of São Paulo; LL.M., Yale Law School; and an EMILDAI graduate.
