A December 2022 decision by the Austrian Constitutional Court to annul the media privilege in the Austrian Data Protection Act has raised questions on how the country’s approach to the legal landscape regulating the media will change. Wolf Theiss Partner Kurt Retter and DLA Piper Counsel Stefan Panic analyze the ruling’s implications.
Setting it all in motion, a Tyrolean company had filed a complaint to the data protection authority concerning two Austrian media companies refusing to provide access to and delete personal data. The Austrian Data Protection Authority refused to deal with the matter, invoking the media privilege which states that data processing for journalistic purposes by media companies is exempt from certain provisions of the Austrian Data Protection Act, as well as certain areas of the GDPR. The company in question turned to the Austrian Federal Administrative Court, initiating a Constitutional Court law review procedure. The Constitutional Court found the media privilege to be unconstitutional and has declared that it will be repealed by June 30, 2024.
Balancing Constitutional Rights
Providing context to the matter, Panic shares that the media privilege provided a broad exemption for the media on processing personal data for journalistic purposes. “The regulation in Austria provides that Austrian national data protection laws – as well as significant parts of the GDPR – do not apply to media who process personal data for journalistic purposes. This especially concerns data subjects’ rights, data transfer, and data protection principles,” Panic explains. “The current media privilege is undifferentiated as it principally does not consider data protection at all (i.e., does not balance data subjects’ rights and media interests), and focuses solely on data processing by ‘traditional’ media for journalistic purposes.” According to Panic, this makes it harder for, for example, bloggers to use the media privilege due to formal requirements and sets out rather narrow bounds for journalism.
“This exemption is very broad and has also been criticized for this reason in the Austrian legal doctrine and by legal practitioners as potentially excessive and in breach of the scope granted to national legislators under the GDPR,” Panic continues. “In light of this, while we do not have a full picture of how media privilege is regulated in other EU countries, we would expect that the Austrian approach is likely broader than the corresponding regulation in other countries.”
Retter says that the annulled media privilege did not provide for the “weighing of interests equally protected by the Federal Constitution,” specifically the contrasting of “interests in personal data protection against that of free speech and freedom of information,” which are equally protected by the constitution. Conversely, the annulled media privilege “contained an absolute exemption of all personal data processing activities, conducted by certain media undertakings, from data protection requirements.”
Panic adds that, while there have been no previous challenges brought before the Constitutional Court, courts had previously “requested the media privilege, as it was regulated, to be repealed earlier last year. However, this failed due to formal reasons. So, in this sense, the current ruling is a pioneer action.”
This pioneer decision, thus, highlights the importance of striking a balance between personal data protection and freedom of speech and freedom of information, while also raising questions about how other EU countries approach this sensitive issue.
Grace Period Until Mid-2024
The decision has left many wondering about its implications for the Austrian media and the wider business landscape. Looking ahead, Retter says that “unless the legislator enacts a new legal regime under the Austrian Data Protection Act before July 1, 2024, when the annulment of the media privilege takes general effect, nothing will change until that date. In the absence of a new legal regime under the Austrian Data Protection Act being enacted, the media privilege will simply fall away on July 1, 2024,” he explains. “The Constitutional Court decision will stand, as it is final and binding and not subject to any further appeals.”
“Since it is not clear whether and how soon the legislator will implement a revised media privilege,” Panic chimes in, “it is challenging to estimate possible impacts. However, the media may be more reluctant to process certain personal data for journalistic purposes until the legal situation is clarified,” he says. According to the court’s decision, “although national legislators must provide for certain exceptions for media as the ‘public watchdog’ – as concerns the processing of personal data – such exceptions must include an adequate and differentiated balance between data protection and journalistic work,” Panic explains. “Such balance may include certain time, personal, or matter-related constraints for the media privilege, and also increased requirements for the media.”
Agreeing with Panic, Retter adds that, concerning such increased requirements, the “legislator could – as compensation for the exclusion of (certain) data protection provisions – provide for increased requirements regarding the internal organization, documentation, and technical security of the processed data.”
Potential EU Spillover
Assessing the possibility of this decision having a spill-over effect on other EU countries, Panic stresses that it may “influence other jurisdictions where the media privilege is comparatively undifferentiated, not considering data protection at all either. In such jurisdictions, the legislators or the courts may become keener to repeal any such undifferentiated media privilege,” he opines.
“In the opinion of the Constitutional Court, the constitutional guarantees of free speech and freedom of information require the legislator to make use of the authorization of Article 85 of the GDPR and to exclude the applicability of certain provisions of data protection law – which are incompatible with the specifics of the exercise of journalistic activities – to data processing for journalistic purposes,” Retter underlines. “Whether the Constitutional Court’s decision will have a spill-over effect will depend on whether relevant national constitutional law requires a similar weighing of interests as required by the Austrian Federal Constitution,” he concludes.