Tietosujvaltuutettu v Satakunnan Markkinopörssi: the ECJ rules

Jeremy Phillips

The Court of Justice of the European Communities (ECJ) gave its ruling this morning in Case C-73/07 Tietosujvaltuutettu v Satakunnan Markkinopörssi Oy and Others, establishing that the processing of personal data made available by the tax authorities in Finland for the purposes of putting into place a text-messaging service allowing mobile telephone users to receive tax data relating to other natural persons may be the subject of a derogation from the data protection rules if it is carried out solely for journalistic purposes.

The facts that to this reference are as follows. For several years Markkinapörssi collected public data from the Finnish tax authorities for the purposes of publishing extracts from those data in the regional editions of the Veropörrsi newspaper each year. The information contained in those publications comprises the surname and given name of approximately 1.2 million persons whose income exceeds certain thresholds as well as the amount, to the nearest EUR 100, of their income and details of the wealth tax levied on them. That information is set out in the form of an alphabetical list and organised according to municipality and income bracket.

Markkinopörssi and Satamedia, an associated company to which the data at issue were transferred in the form of CD-ROM disks, signed an agreement with a mobile telephony company which put in place, on Satamedia’s behalf, a text-messaging service allowing mobile telephone users to receive information published in Veropörrsi on their telephone for a charge of approximately EUR 2. On request, the personal data are removed from that service.

Following complaints from individuals who alleged infringement of their right to privacy, the Data Protection Ombudsman sought an order prohibiting Markkinapörssi and Satamedia from carrying on the personal data processing activities at issue.
The Supreme Administrative Court then asked the ECJ to rule on the correct interpretation of The Data Protection Directive. The referring court wants to know the circumstances in which the activities in question can be considered as data processing undertaken solely for journalistic purposes and may, accordingly, be the subject of derogations and limitations relating to data protection.

The ECJ held today that the activities of Markkinapörssi and Satamedia constituted data processing within the meaning of the Directive, even thought the files of the public authorities that are used comprise only information that has already been published in the media. If this were not so, the directive would be largely deprived of its effect. The court added that the Member States should, while permitting the free flow of personal data, protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy, with respect to the processing of those data. To reconcile the protection of privacy and the right to freedom of expression, Member States must provide for a number of derogations or limitations in relation to the protection of data and, therefore, in relation to the fundamental right to privacy. Such derogations must be made solely for journalistic purposes or for the purposes of artistic or literary expression, which fall within the scope of the fundamental right to freedom expression, since it is apparent that they are necessary in order to reconcile the right to privacy with the rules governing freedom of expression.

According to the ECJ, activities such as those carried on by Markkinapörssi and Satamedia and which concern data from documents which are in the public domain under national legislation may be classified as ‘journalistic activities’ if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes. Now the Supreme Administrative Court has to determine whether the disputed activities have as their sole object the disclosure to the public of information, opinions or ideas.

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