
Contents
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1. The Contemporary European Jurisprudential Context 1. The Contemporary European Jurisprudential Context
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1.1 The European Court of Human Rights 1.1 The European Court of Human Rights
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1.2 Court of Justice of the European Union 1.2 Court of Justice of the European Union
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2. The Contemporary DPA Resource Context 2. The Contemporary DPA Resource Context
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3. State DPAs, Professional Journalism, and Standard-Setting 3. State DPAs, Professional Journalism, and Standard-Setting
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3.1 The Need for, and Dilemma of Data Protection Standard-Setting 3.1 The Need for, and Dilemma of Data Protection Standard-Setting
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3.2 Achieving and Promoting Co-regulatory Standards 3.2 Achieving and Promoting Co-regulatory Standards
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3.3 The Particular Dilemma of Media Archives 3.3 The Particular Dilemma of Media Archives
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4. State DPAs, Professional Journalism, and Enforcement 4. State DPAs, Professional Journalism, and Enforcement
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4.1 The General Context 4.1 The General Context
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4.2 Crafting a Strategic Enforcement Strategy 4.2 Crafting a Strategic Enforcement Strategy
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5. A Role for the European Data Protection Board? 5. A Role for the European Data Protection Board?
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5.1 Avoiding a Coercive, Non-Deferential Approach 5.1 Avoiding a Coercive, Non-Deferential Approach
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5.2 The Value of Guidance, Consultation, and Voluntary Cooperation 5.2 The Value of Guidance, Consultation, and Voluntary Cooperation
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6. Conclusions 6. Conclusions
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9 The Future Shape of European Data Protection Regulation and Professional Journalism
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Published:December 2019
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Abstract
This chapter explores the approach European Data Protection Authorities (DPAs) should take to their role vis-à-vis the professional journalistic media under the General Data Protection Regulation (GDPR). Such an approach must take into account the contextual trend within European Court of Human Rights case law, the growth of a stricter Court of Justice of the European Union data protection jurisprudence, and continuing severe resource constraints. In the area of standards, DPAs should endorse a broad construction of the journalistic derogation that encompasses news/media archives but should also promote a specific and structured approach to contextual balancing within this derogation. Such detailed standard-setting raises acute sensitivities. Therefore, guidance should be formulated through a co-regulatory process which adopts the GDPR’s code of conduct provisions as a broad guideline. Enforcement remains even more delicate, potentially very expensive, but nevertheless vital. A strategic co-regulatory approach is appropriate here too. DPAs should encourage self-regulatory monitoring mechanisms and, in cases where these meet the criteria laid down in the GDPR, should defer to them other than when particular systematic or serious issues arise. If such criteria are not satisfied, DPAs need to deploy their powers proactively across the board. Finally, where no self-regulatory mechanism exists, DPAs must independently ensure a proportionate response to all complaints and issues that arise. Media regulation rightly remains largely within State jurisdiction. Therefore, the European Data Protection Regulation should avoid coercive intervention here. Nevertheless, it should play a valuable ʻsoftʼ role through drafting non-binding guidance and promoting information exchange, dialogue, and cooperation.
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