This week Bulgarian Data Protection Commission came up with an opinion (here in Bulgarian) concerning the right to be forgotten and its limits in the context of journalism.
The opinion follows the harsh opposition of the Bulgarian media against certain wording in the Bulgarian Data Protection Act (DPA). The latter was finally promulgated on 26 February 2019. The DPA introduced some of the areas which GDPR allowed to be developed in local Member States laws. One of these areas concerns using personal data for the purposes of media publications.
The new DPA envisages that when a journalist includes personal data in her publication, the journalist shall seek for the balance between the protection of the personal life of the person the article is about and the freedom of speech. DPA enlists certain criteria which may be used by the journalist in order to find the balance:
- the type of the personal data
- to what extent the revealing of the personal data will influence the personal life of the respective person
- how the journalist got the personal data
- whether the person the journalist reports about holds a public position, etc.
The Bulgarian media reacted strongly against these criteria and argued that the government is actually trying to curb the freedom of speech. The opposition was so intense that the President even vetoed the bill and the Parliament had to vote it again with special majority.
The opinion follows a request by a convict who asked several online media to delete articles and pictures about him. In effect he has used his right to be forgotten.
The Commission starts its analysis with the landmark European court decision Google Spain (C-131-12) where Google was found to be a controller and was ordered to delete information about Mr. Mario Gonzales. The Commission elaborates that this decision introduces the analysis of the balance between the freedom of speech, the right to access of information and the protection of the personal life.
The Commission elaborates that in some cases the controller is entitled to refuse the deletion of personal data and among others such case will be when the controller is exercising the right of freedom of speech and information as the current case seems to be. It shall also be noted that the right of protection of personal data is not an absolute right. It always shall be viewed in line with the other rights and shall be applied as per the GDPR proportionality principle.
The Opinion reads that when medias publish information about convicts this is in favor of the society. It has the right to know who has committed a crime and this is a part of the effect which the criminal law aims to achieve with respect to convicts. Media and journalists are called to inform citizens and as of this media in fact protects the public interests. It shall also be noted that details about the convicts and his deeds are in fact included in the verdict which in the end of the day is publicly available.
As of this according to the Commission when media spread news about convicts this is in public interest, strengthens the purposes of the criminal law and informs the citizens about criminal offences. Because of this journalists may refuse to delete convicts’ personal data and in fact this is a restraints of convicts’ right to be forgotten in the context of journalism.
The opinion does not provide a specific answer as to how long the journalists are entitled to keep the information containing personal data. The Commission simply says that this term shall be in line with the storage limitation principle of GDPR.
The opinion partially calms down the media with respect to personal data concerning convicts. However, it still remains unclear how the medial will find the balance between freedom of speech and protection of personal right when journalists are involved in journalistic investigations, possible corruption cases, and etc. In all such cases journalists publish information from unrevealed sources, the information may not be correct or may be false. Will all such objects of investigations be entitled to ask journalist to “forget” all their data and will this be in line with the freedom of speech and right of society to know the truth?