23 November 2011


'Freedom of Expression Turned on its Head? Academic Social Research and Journalism in the European Union's Privacy Framework' (Oxford Legal Studies Research Paper No. 53/2011) by David Erdos criticises "mainstream interpreters" of the EU Privacy Framework.

The 36 page paper argues that
mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.
The paper is clever but to my mind unpersuasive.

Erdos states that -
As Philip Strong noted almost thirty years ago, journalists and academic social researchers are both “professional students of the social world”. In pursuing this activity, each group finds it essential to gather and analyze a wide range of information, much of which is personal to identified or identifiable individuals. Despite this shared need, it is generally held that laws protecting such personal data both do, and should, regulate these actors in a radically divergent manner. Whilst the EU Data Protection (DP) Directive 95/46/EC suggests that Member States grant broad derogations from DP laws for journalism, it includes only much narrower provisions to help shield ‘research’. Meanwhile, at a regulatory level, in 2003 the European Commission’s RESPECT project drew up DP guidance for social researchers which only made use of these narrow ‘research’ exemptions. Moreover, this peculiarly stringent regime has been rolled out even in jurisdictions such as the UK which have generally been thought to take a rather lax approach to compliance with pan-EU DP requirements. Thus, whilst the UK’s Data Protection Act (DPA) 1998 provides journalism with a qualified exclusion from almost all its provisions, only “limited exemptions” are set out for research. Meanwhile, the UK Information Commissioner’s Office model registration for British universities under the DPA 1998 suggests that they notify for the purposes of “research” but not for what they term the “journalism and media” purpose which allows for broader derogations from DP norms. Finally, the implementation of such a targeted regime for academic speech has come to constitute a serious problem for social researchers leading amongst other things to restrictions on covert and/or deceptive methodologies, the use of “sensitive” personal data and the non-anonymous reporting of research results.

This article argues that this bifurcated understanding of European DP law’s requirements is both legally and normatively wrong. Firstly, the special derogations within the EU Data Protection regime cover not just cover “journalism” but also “literature” and “art”. There is no reason why the work of academics within humanities and social studies should not fit within one or other of these categories. Secondly, whilst the stipulation that to gain such protection the processing must be “only or “solely” for one or other of these purposes is unhelpfully opaque, a purposive reading of this reveals that this should only impose a relatively unproblematic “entirety” as opposed to a strict “exclusivity” requirement as regards the processing in question. Third and most importantly, the alternative and currently mainstream interpretation of the DP framework is radically inconsistent with freedom of expression protections as set out for example in the European Convention on Human Rights (ECHR). Academic and non-academic social investigators are essentially both involved in the common activity of collecting, analyzing and disseminating material for the public’s benefit. Moreover, membership of the academic community implies a particular concern for the qualities of “rigour, system, culmination and precision”. As a result, ceteris paribus, academically validated output may be considered at least, if not more, socially valuable than its non-academic counterpart. However, DP law as traditionally interpreted imposes unique and draconian restraints in the production of just this type of material. It therefore effectively turns freedom of expression protection ‘on its head’.