Paul Keres: Proposed stricter GDPR implementation 'nonsense'

Paul Keres.
Paul Keres. Source: Siim Lõvi /ERR

Paul Keres, partner at Glikman Alvin and Estonia's 2017 Advocate of the Year, thinks that the current debate following the attempt of politicians to sneak more restrictive language into Estonia's implementation of the EU's general data protection regulation (GDPR) is justified. Not only are the proposed changes nonsense, but they also go against the spirit of the EU's own text.

ERR News: Paul Keres, to get right to the point — would the addition of the term "predominant public interest" to the Estonian implementation bill of the GDPR have been excessive?

To get right to the point, I think so, yes.

There seems to be the question as well what the appropriate translation of the GDPR's "substantial public interest" is, and how it relates to the "predominant public interest" that is already part of Estonia's own personal data protection legislation. Are the two comparable?

The use of the word "predominant" is, in my opinion, awkward. I'm not sure why the translators chose this particular word instead of the more appropriate "overwhelming," which is a much better match with the Estonian term ülekaalukas. However, I think the public is being led on by the politicians, for example by Hanno Pevkur and Rein Lang, who claim that the processing of personal data by journalists is legitimate only if there is "overwhelming" public interest to support it.

The GDPR certainly says nothing of that sort. Firstly, if you perform a quick keyword search within the regulation, you will find 70 instances of the phrase "public interest" being used, yet in only one of those instances you will find it qualified by the word "substantial", which applies another element of protection. This is applied in the context of the processing of special categories of personal data, such as political opinions, racial origin, religious beliefs, trade union membership, health data, and so on.

According to the GDPR, the processing of this kind of data is usually prohibited, except for cases where it is justified by "substantial" public interest as set out in Article 9.

Now, in terms of processing data for jounalistic purposes, the GDPR is clear that member states shall adopt whatever national legislation is required to reconcile the right to the protection of personal data with the right of freedom of expression and information. It specifically permits derogations and exemptions from the general rules, such as those set out in Article 9 for example, so as to safeguard the exercise of journalistic freedom.

As a qualified legal practitioner, I find it very difficult to follow the logic of Messrs Pevkur, Lang, and Reinsalu. If the processing of certain special categories of personal data is usually permitted, provided that there is substantial public interest to justify it, and the GDPR further allows derogations from this rule to better safeguard the exercise of journalistic freedom, then how can the implementation of such derogations end up being even more restrictive than the general rule?

It's nonsense, as I'm sure you'll agree.

Former MEP and long-time politician Marju Lauristin as well as several prominent journalists and publishers have said that the tendency towards trying to gag the press in court is apparent also here in Estonia. Have there been cases recently that would support this statement?

My own experience from my media law practice suggests that the emphasis should rest of on the word "trying". Our courts are admirably steadfast in protecting the freedom of the press, and usually refuse to hand down gag orders regarding journalism that sheds light on crucial issues, even if it may be very uncomfortable for the people concerned.

This is not to say that you may simply drag a politician's reputation through the mud without consequences, but as long as the story is balanced and rests on a solid foundation of facts, you'll be okay. At the same time though, as someone who doesn't belong in the public domain, you may rest assured that the courts will keenly protect your right to privacy.

The GDPR makes it an explicit point that member states should have enough leeway to make exceptions for journalistic freedom, yet the Constitutional Committee's instinct is to curtail it instead. Would you say this interpretation is in the spirit of what the EU intended here?

Certainly not. It's a case of the fox guarding the hen house. Ultimately it's the politicians who have the monopoly of passing legislation, and at the same time they are the the journalists' primary targets. It seems to have become a natural state of being for Estonian politicians to advocate transparency and honesty in everything but their own affairs.

I think what the politicians fail to see is that journalism is not designed to make everybody feel good, and that the aim of the fundamental right to freedom of expression is not to protect those ideas that most would agree with. Quite the opposite, it is designed to protect those that dissent from the mainstream, not those that swim with it.

Considering the current situation of the news business, do you think the threat of legal action and the implied costs would be enough for a paper to think twice about publishing certain stories?

At the moment, I don't think so. Nor should it. If the exercise of journalistic freedom becomes prohibitively expensive, then it will begin to erode. And in the absence of a truly free media we will succumb to authoritarian ambition, to be sure.

Some, former minister of Justice Rein Lang (Reform) among them, have mocked those worried about stricter legislation and said that the media are making a din about nothing. How important is the role of the media and a maximum of press freedom in Estonia's democratic process today?

In some ways Rein Lang is correct, because the existing law already contains the same kind of language, but I think ülekaalukas or "overwhelming" public interest is not very clear. I would suggest they use oluline instead, which is much more appropriate.

But mocking the press for their concern is certainly uncalled for. I love seeing the press outraged, because this is exactly the kind of behaviour that journalistic freedom is designed to protect.

The covert inclusion of restrictive language into draft legislation being discovered, publicly decried and then seen removed. That's democracy at work! My only wish is that the journalists would show the same kind of tenacity to reveal the plight of others being trampled on by the government.

Editor: Dario Cavegn

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