Media privilege

from Wikipedia, the free encyclopedia

The media privilege means an exemption for the media from data protection law . It grants certain exceptions to the general legal protection of personal data when processing for journalistic purposes. The background to this is to reconcile the right to the protection of personal data with the right to freedom of expression and information .

The media privilege is regulated by law in Art. 85 Para. 2 of the General Data Protection Regulation (GDPR), which replaced the Data Protection Directive on May 25, 2018 , and in Germany also in Section 9c of the Interstate Broadcasting Agreement (RStV) for the state broadcasters that are part of ARD the ZDF that Germany radio and private broadcasters as well as in § 57 RStV addition to all media providers who in Telemedia work and their auxiliary companies that elaborate from outside the newsroom, such as agencies, correspondent offices or production companies.

For the printed press, there are corresponding regulations in the individual state press laws .

Until the expiry of the data protection guideline, the media privilege was regulated in § 41 BDSG .

meaning

The media privilege exempts the journalistic-editorial processing of personal data from certain data protection provisions. It is a so-called data protection area exception so that journalists have no “scissors in their heads” when they are researching if they have to think about data protection aspects at any time.

"Journalistic activity"

According to Art. 85 (2) GDPR, the member states provide for deviations or exceptions from Chapters III to VII and Chapter IX for data processing carried out for journalistic purposes, if this is necessary in order to protect the right to personal data with freedom to reconcile expression and freedom of information. In view of the importance attached to freedom of expression in any democratic society, on the one hand the related terms, including journalism, must be interpreted broadly (Recital 153 of the GDPR). On the other hand, in order to strike a balance between the two fundamental rights, the protection of privacy requires that the exceptions and restrictions relating to data protection be limited to what is absolutely necessary.

With a ruling of February 14, 2019, the European Court of Justice (ECJ) stated that not all information published on the Internet constitutes “journalistic activity” on the scope of the media privilege. It is up to the national courts to decide whether the specific processing falls under this definition. In its decision, however, the ECJ gives a number of points of interpretation. According to this, the sole purpose of the activity is to disseminate information, opinions or ideas to the public (“seeking the public”). However, it does not need to be practiced professionally. The medium with which the data is transmitted, such as paper, radio waves or electronic media such as the Internet, is also not decisive.

The European Court of Human Rights (ECHR) has developed a number of relevant criteria for the purpose of balancing the right to respect for private life protected in Art. 7 of the Charter , Art. 8 ECHR and the right to freedom of expression, which must also be taken into account including the contribution to a debate of general interest, the level of awareness of the data subject, the subject matter of the reporting, the previous behavior of the data subject, the content, form and impact of the publication, the manner and circumstances in which the information was obtained have been and their accuracy. Likewise, the possibility for the controller to take measures that make it possible to reduce the level of interference with the right to privacy must also be taken into account.

Range exceptions

The data secrecy according to Section 53 BDSG as well as Chapter I of the GDPR on the material and spatial scope and Chapter VIII on liability and compensation in the event of breaches of data secrecy or data security also apply to journalists.

However, you do not require consent to data processing in accordance with. Art. 6, 7 GDPR. For image reporting that apply § 22 , § 23 KUG .

§§ 9c Abs. 3, 57 Abs. 2 RStV limit a person's right to information about the data stored by them according to. Art. 15 GDPR for reasons of journalist, source and research protection.

The validity of the media privilege not only for editorial activities, but also for individuals (“citizen journalists”), according to the ECJ case law, has not yet been expressed in the German regulations.

Self-regulation of the media on data protection

The media privilege in the Interstate Broadcasting Treaty and in many press laws provides a way of completely avoiding the supervisory regime of the data protection authorities and thus also any fines, namely if one submits to the press code of the German Press Council . The code provides for editorial data protection and contains its own press-specific sanctions (“public reprimand instead of fines”). However, only journalistically and editorially structured media can commit to the press code.

literature

  • Jan Wendt: The privileges of the media and the criminal offense against stalking . Publishing house Dr. Kovac, Hamburg 2010, ISBN 978-3-8300-5088-9 .
  • Martin Rupp: The state's fundamental legal duty to protect the right to informational self-determination in the press sector . Alma Mater publishing house, Saarbrücken 2013, ISBN 978-3-935009-55-3 .

Web link

Individual evidence

  1. ^ Matthias Cornils : The media privilege under data protection law under authority supervision? The EU law framework for adapting the media law area exceptions (in § 9c, § 57 RStV-E and the state press laws) to the EU General Data Protection Regulation . Mohr Siebeck. Tübingen 2018. Reading sample .
  2. ↑ Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46 / EC (General Data Protection Regulation) in the consolidated Version from May 4, 2016  - (also available in PDF format (PDF; 624 kB) ).
  3. ↑ Art. 85 GDPR processing and freedom of expression and information
  4. ↑ Interstate broadcasting treaty in the consolidated version, entered into force on May 1, 2019.
  5. ↑ § 41 BDSG collection, processing and use of personal data by the media in the version valid until May 24, 2018. dejure.org, accessed June 29, 2020.
  6. ↑ ECJ, judgment of December 16, 2008, Satakunnan Markkinapörssi and Satamedia, C ‑ 73/07 Rn. 56.
  7. ↑ ECJ, judgment of February 14, 2019 - C ‑ 345/17 Sergejs Buivids v Datu valsts inspekcija (national data protection authority, Latvia)
  8. ↑ ECJ of February 14, 2019, C ‑ 345/17, para. 55 ff.
  9. ↑ cf. ECHR, June 27, 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy / Finnlan. Full text publication for download at dejure.org.
  10. ↑ OLG Cologne, decision of June 18, 2018 - 15 W 27/18
  11. ↑ Nicolas Maekeler: GDPR and photography: Cologne Higher Regional Court provides some clarity heise.online, June 26, 2018.
  12. ↑ cf. Julia Glocke: Journalistic source protection in German and European law. Nomos-Verlag, 2018. ISBN 978-3-8487-4414-5 .
  13. ↑ ECJ, judgment of December 16, 2008, Satakunnan Markkinapörssi and Satamedia, C ‑ 73/07 Rn. 58.
  14. ↑ Jonas Kahl, Franziskus Horn: ECJ on data protection law: media privilege also for bloggers? Legal Tribune Online , February 27, 2019.
  15. ↑ cf. Kevin Peter: Addresses of data protection supervisory authorities in Germany. Retrieved June 29, 2020.
  16. ↑ cf. Rügen of the Press Council since 1986 Supporting Association of the German Press Council, accessed on June 29, 2020.
  17. ↑ Jonas Kahl: What does the data protection media privilege mean for journalists? 29th August 2018.