Data protection, the journalistic exception, and the public sphere

Data protection and freedom of expression have an inescapably tense relationship. The GDPR deals with this tension through the journalistic exemption, although it does not offer a clear answer to what journalism means. Most of the literature on the interpretation of the journalistic exemption has focused either on the words of the GDPR and its origins in the DPD or on how member states have interpreted its words in different contexts. The journalistic exemption, however, has also been interpreted by the ECJ and the ECtHR. While almost every work on the journalistic exemption has incorporated this dimension as offering guidelines for interpreting it, there are no extensive critical analyses of this case law. This article will focus on how European courts have interpreted the journalistic exemption. It will argue that their approach relies on a descriptively and normatively problematic conception of the public sphere.