CJEU Case Law On Data Protection and Freedom of Expression in the Online Space or through Digital Technologies: What Input from the ECHR?
CJEU Case Law On Data Protection and Freedom of Expression in the Online Space or through Digital Technologies: What Input from the ECHR?

Summary/Abstract: While the purpose of the GDPR is to ensure the protection of fundamental rights and freedoms with regard to the processing of personal data, in practice, in many cases, Articles 7 and 8 of the Charter must be weighed against the freedom of expression enshrined in Article 11. This contribution examines the balancing of competing fundamental rights in light of the increasing impact of digitalization on data processing and safeguarding.To this end, the paper examines the CJEU’s interaction with ECtHR case law on restrictions to the freedom of expression and the former’s responsiveness to the tests developed by the Strasbourg Court, while applying them to a digital context. In particular, the article focuses on the necessity test as applied in data protection law and correlates it with the exemption for journalistic purposes. For that end, the analysis of cases such as C-345/17 Buivids, C-73/07 Santamedia or C-101/01 Lindquist may represent a relevant starting point. Furthermore, the paper illustrates the operation of the proportionality test as applied to restrictions of fundamental rights in the context of data protection and digitalisation, seeking to identify potential tension points or gaps where the jurisprudential response (both at European and national levels) may lag behind technological advancements. While the CJEU has not developed specific case law devoted to address the differences between the traditional press and digital media, we argue that, following the ECtHR standard case law, the particularities of the new social media and press environments should be assessed under the condition of proportionality.The contribution therefore aims to offer a wider perspective on how data protection interlocks and interacts with freedom of expression in the legal system of the EU and in specialized secondary legislation. Importantly, the paper also seeks to explore the potentially sensitive areas where the CJEU’s jurisprudential responsiveness may be too slow or insufficiently supple by comparison to the rapidly changing circumstances in which these fundamental rights come to be exercised – in particular, the digital environment.

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