From the Scylla of Restriction to the Charybdis of License? Exploring the Scope of the ʻSpecial Purposesʼ Freedom of Expression Shield in European Data Protection

European data protection sits in a relationship of profound tension with public freedom of expression. Although, Directive 95/46 include a special purposes provision for processing ‘carried out solely for journalistic purposes or the purposes of artistic or literary expression’, its limited scope fails to provide for a general reconciliation of values in this area. As vividly highlighted by the recent Google Spain decision, these problems were only partially resolved in the Satamedia judgment. Proposed amendments to require Member States to effect a reconciliation between data protection and freedom of expression itself run the theoretical risk of expanding the scope of this highly discretionary clause into one of universal application. However, as this would clearly conflict with the core harmonizing aim of reform, it would almost certainly be interpreted much more restrictively, thereby fuelling existing confusions. A two-pronged, layered approach may be preferable. Firstly, the special purposes provision would be expanded to clearly protect all activities orientated towards disclosing information, opinion or ideas for the benefit of the public collectively. Secondly, Member States would be obliged to effect a broader but more stringent reconciliation of data protection with the right to public freedom of expression under the law’s general derogation provisions.I would like to thank the Data Protection Authorities (DPAs) and the many individuals who have assisted the research presented here, as well both the British Academy and the Leverhulme Trust who provided much needed financial support for it.This is the author accepted manuscript. The final version is available from Kluwer via http://www.kluwerlawonline.com/document.php?id=COLA201500