Data protection and press freedom: regulations for journalists

Regulation of the media privilege in Germany

Germany has implemented these provisions in the Interstate Broadcasting Treaty (Rundfunkstaatsvertrag) in Sections 9c and 57 RStV and in the individual press laws of the Länder. Previously, the media privilege was regulated in § 41 BDSG. The media privilege has many advantages for people working in the media (e.g. journalists):

• In the case of editorial activities, the consent of the person concerned is not required if a journalist processes personal data exclusively for journalistic purposes. It is necessary to weigh up the general personal rights of the data subjects against the public interest in information.
• Journalists do not have to inform data subjects of their rights of access, opposition, etc. in relation to data processing.
• Journalists only have an obligation to provide information to those affected if general personal rights have been violated. If the journalist has a legitimate interest, such as protection of sources or research, the statement can be refused.

To whom does the media privilege apply

Per Gesetz gilt das Medienprivileg für “in der ARD zusammengeschlossenen Landesrundfunkanstalten, das ZDF, das Deutschlandradio, private Rundfunkveranstalter oder Unternehmen und Hilfsunternehmen der Presse” (§ 9c RStV) sowie “alle Medienanbieter, die in Telemedien tätig sind und deren Hilfsunternehmen” (§ 57 RStV). Für Printmedien gelten ähnliche Regelungen in den Landespresseregelungen.

However, the German legal situation is currently still unclear with regard to persons directly working as journalists on behalf of media companies, i.e. freelance journalists and bloggers.

Data protection obligations that must be observed despite media privilege

If a media company or journalist processes data that has no direct connection to journalistic activity (e.g. e-mail addresses for newsletter subscriptions), the provisions of the DSGVO apply without restriction.

However, a recent decision of the 15th Civil Senate of the Higher Regional Court of Cologne also shows the limits of the media privilege. Patient rights as well as medical secrecy must also be taken into account by journalists, such as a Article in the Ärztezeitung makes it clear.

Recommendation from Robin Data

Persons working in the media who by law are not covered by the media privilege because they are not part of a media company or broadcasting organisation should invoke the media privilege in the event that an incident concerning researched personal data is reported. Furthermore, the development of the legal situation should be monitored. Of particular interest are decisions by Data Protection Authorities.