Defining ‘journalism’ in the age of evolving social media: a questionable EU legal test

Abstract

Seeking to address how new media fall within the Article 9, Data Protection Directive's exemption for processing for ‘journalistic purposes’, the European Court of Justice (ECJ) formulated a test that is so broad that the boundaries of who is a journalist under the exemption remain unclear. The decision in Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy, (‘Satakunnan') however, was not dictated by the Court's prior jurisprudence or that of the European Court of Human Rights under Article 10 of the Council of Europe Convention on Human Rights and Fundamental Freedoms. Although different legal tests for ‘journalism' can exist for different purposes, within and across jurisdictions, where rights are purportedly premised on the same legal instruments, distinct legal tests can be problematic and present dualist compliance issues for national courts. This article considers the nature of the ‘journalistic purposes' test in Satakunnan. It examines the likely conflict of this test with European Court of Human Rights’ standards for press protections under Article 10 jurisprudence and standards in various EU Member States under both media law outside EU competence and the implementation of Article 9 of the Directive. It concludes that the ECJ's unwarranted exercise here was avoidable and that the test of journalism in an age of evolving media can be met by simple criteria which imbed Article 10 distinctions for the press.