Personal Data Protection Act is partly not applicable to journalistic publications, provided that a number of conditions have been met.
The Personal Data Protection Act (Wet bescherming persoonsgegevens, “Wbp”) is partly not applicable to journalistic publications in which personal data are included, if the personal data are published ‘for exclusively journalistic purposes’. The Dutch Data Protection Authority (“the Dutch DPA”) has explained in its Guidelines Publication of Personal Data on the Internet (“Guidelines”) when this is the case.
Confirmation Consultation Document
On 11 December 2007 the Dutch DPA published the final text of its Guidelines. These Guidelines serve as a help to assess whether the publication of personal data on the Internet has been done in the correct manner. On 17 October 2007 the Dutch DPA had published a consultation document to which a number of organizations that are active in this field could react. The final text has been adjusted and added to in several respects, but strongly resembles the consultation document. In our newsletter of November 2007 we published an article providing an overview based on the consultation document. The same overview applies to the new text.
Exemption for Purposes of Journalism
The Wbp applies also to journalistic publications, if they contain personal data. However, if the ‘processing’ (read: publication) of personal data takes place for ‘exclusively journalistic purposes’ only, the Wbp will partly not be applicable – which non-applicability includes the obligation to report the processing of personal data to the Dutch DPA and the prohibition from processing special personal data such as data concerning a person’s religion, philosophy of life, race or political persuasion. In that event the data subject cannot demand either that incorrect personal data be corrected or deleted. Instead the media sometimes publish rectifications in retrospect, if necessary.
When does the exemption for purposes of journalism apply to publications on the Internet? The Dutch DPA gives an explanation in the Guidelines. A rough assessment takes place “by viewing the publication in its context and then considering the various interests involved”. Four criteria are used for this purpose:
Is the activity oriented towards (objective) collection and distribution of information?
Is it a regular activity?
Is the aim of the publication to raise a topic of social significance?
Does the publication grant data subjects the right to reply or obtain rectification after publication?
If the publication meets all four criteria, the exemption for purposes of journalism applies in any case. But also if a publication does not (fully) meet all criteria, the exemption may be applicable. When in doubt, media on the Internet would do well to seek the advice of a specialist in this field, for example a privacy or media law attorney.
Objective Collection and Provision of Information
Publications must be oriented towards “essentially objective collection and distribution of information”. This is connected to the idea that journalism is meant to inform the public. However, the wording of this criterion is rather firm and creates the impression that ‘serious’ opinion articles cannot or are not likely to lay claim to the exemption. However, this would be an underestimation of that form of journalism, and therefore I think that this criterion should not be interpreted too strictly.
Visitors to websites are increasingly offered the option of reacting to news reports. It is remarkable that the Dutch DPA, in its assessment of whether there is objective provision of information, also looks at the quality of the ‘moderation’ of the reactions placed. If the owner of the website does not actively supervise reactions, for example by refusing or removing them if they are damaging to third parties, this may be a reason not to let the publication of the actual articles fall under the exemption.
In order to make use of the exemption it is not required that a publicist is paid for his publications. However, publication must be a “regular activity”. A weblog with a few outdated contributions may not rely on the exemption for purposes of journalism as easily as a publication on which new contributions appear regularly.
In case law on the question of whether publications are unlawful, it matters whether a publication is about a topic of social significance. If so, the publication will not be unlawful as easily as a publication that merely exposes the private life of a person. The Dutch DPA also uses this criterion in its assessment of whether the exemption for purposes of journalism applies.
Right to Reply
The Dutch DPA takes into account whether the data subject is offered the option of personally placing a reaction, in which he or she reports about the incorrect information. On the Internet visitors to websites increasingly have the option of placing reactions to (news) reports, but precisely the websites of long-standing media, such as the national daily newspapers, do not always offer this option.
Furthermore, the question is whether it is sufficient that a data subject can post a message on such a discussion forum. The Dutch DPA considers it important that the reaction is given a similar prominent place in the publication as the original expression. How this will work in practice is not quite clear, and the Dutch DPA has not elaborated on this. If the news value of an article is significant and it appears on the home page of a website for that reason, it is very well possible that the inclusion of (incorrect) personal data will play a subordinate role. In that case it is not self-evident that the data subject’s reaction must also be placed on the home page. I think it should be assessed in each individual case what solution is suitable.
Freedom of Speech
The Dutch DPA seems to realize too little that the right to privacy, where it clashes with freedom of speech, will not always be assessed along the lines of the Wbp. Pursuant to the European Convention of Human Rights, limitations to the freedom of speech must not only be provided by law, but must also be necessary and proportionate. Journalists in particular have the right to great freedom. The exemption for purposes of journalism was established because the legislator feared that the “journalistic freedom” would become too limited. Apparently, the legislator considered the limitations of the Wbp a too strong limitation of the freedom of speech to apply them unimpaired. Now the Dutch DPA has come up with its own interpretation of who is a “journalist”. However, this interpretation might well be more limited than can be justified under the case law of the European Court of Human Rights.
Many journalistic websites do not yet meet all criteria for the exemption for purposes of journalism to be applicable. When in doubt, seeking the advice of a privacy or media law attorney may be useful. However, it is questionable whether the interpretation that the Dutch DPA gives of journalism can be upheld.