EU GDPR – Article 85 (Processing and Freedom of Expression and Information)

Abstract

The General Data Protection Regulation (GDPR) is designed to protect personal data and give individuals more control over how their information is used. At the same time, democratic societies also depend on another major right: freedom of expression and information. This includes the ability of journalists to report the news, writers to publish ideas, artists to create meaningful work, researchers to share academic findings, and authors to express opinions and stories. Article 85 of the GDPR exists to balance these two important rights.

Article 85 recognizes that data protection should not be applied in a way that unfairly blocks journalism, artistic creation, academic work, or literary expression. For this reason, it requires EU Member States to create laws that reconcile privacy rights with freedom of expression and information. In simple terms, Article 85 makes room for public interest, free speech, creativity, and intellectual work, while still respecting personal data protections.

This article is especially important because not every use of personal data happens in a business or administrative setting. Sometimes personal data appears in news reports, documentaries, books, research papers, social commentary, photography, and artistic projects. Article 85 ensures that these forms of expression are not automatically restricted in the same way as ordinary commercial data processing.

Explanation

Article 85 GDPR is about legal balance. On one side, there is the right to privacy and personal data protection. On the other side, there is the right to speak, publish, investigate, create, and inform. Both rights are valuable, and neither can simply cancel out the other.

Under this article, each EU Member State must adopt national rules that determine how GDPR applies when personal data is processed for journalistic purposes or for academic, artistic, or literary expression. These national rules may include exemptions or derogations from some GDPR provisions where applying the full regulation would interfere too heavily with freedom of expression.

For example, a journalist reporting on political corruption may need to process names, photos, communications, or other personal details. If every GDPR rule were applied in a rigid way, that reporting could become difficult or even impossible. The same applies to documentary filmmakers, authors, historians, academics, and artists whose work may involve real individuals or real events.

However, Article 85 does not mean “anything goes.” It is not a free pass to misuse personal data. Instead, it creates a framework where privacy and expression must be weighed carefully. The key question often becomes: is the use of personal data genuinely connected to public interest, free expression, education, culture, or intellectual work?

This article also reflects the EU’s broader commitment to human rights. Data protection is a fundamental right, but so is freedom of expression. Article 85 helps prevent one right from completely overpowering the other.

Key Points

1. Article 85 requires EU Member States to balance data protection with freedom of expression and information.
2. It applies mainly to journalistic, artistic, academic, and literary purposes.
3. Member States may create exemptions or derogations from certain GDPR obligations in these contexts.
4. The purpose is to avoid blocking legitimate speech, reporting, creativity, and intellectual work.
5. It does not remove all privacy responsibilities.
6. The use of personal data must still be justified and connected to genuine expression or information purposes.
7. National laws may differ between EU countries, so implementation is not always identical.
8. Organizations and individuals relying on Article 85 must still act responsibly and proportionately.

General Activation Steps

1. Identify the Purpose of Processing: The first step is to determine whether the personal data is being processed for journalistic, artistic, academic, or literary purposes. This is essential because Article 85 only applies when the activity genuinely falls into one of these categories.
2. Review Relevant National Law: Since Article 85 requires Member States to create their own balancing rules, the next step is to check the national legislation of the country involved. One country may allow broader exemptions for media activities, while another may apply stricter conditions.
3. Assess the Public Interest or Expressive Value: The processing should be evaluated to understand whether it serves a real expressive or informational function. For example, publishing personal data in a news article about public accountability may be easier to justify than using the same data in gossip content with no meaningful public interest.
4. Apply Proportionality: Even where Article 85 applies, only the data necessary for the expressive purpose should be used. Excessive, irrelevant, or harmful disclosure can still create legal and ethical problems.
5. Document the Reasoning: Media organizations, publishers, universities, and creators should keep a record of why the processing falls under freedom of expression protections. This helps demonstrate that the decision was not careless or abusive.
6. Maintain Safeguards Where Possible: Even if some GDPR obligations are relaxed, basic care should still be taken. This may include editorial review, ethical checks, secure storage of source material, and limiting unnecessary exposure of sensitive data.

Use Cases

1. Investigative Journalism: Journalists often process personal data while investigating corruption, financial misconduct, abuse of power, or corporate wrongdoing. Names, emails, leaked files, photographs, and witness statements may all involve personal data. Article 85 helps protect the ability to publish information that serves the public interest.
2. News Reporting on Public Events: Reporting on protests, elections, court matters, public figures, or major incidents often involves identifiable individuals. Article 85 allows such reporting to continue without being blocked by overly strict data processing objections, especially where the reporting is lawful and relevant.
3. Documentary and Media Production: Filmmakers and documentary producers may collect interviews, archival footage, voice recordings, and historical records. If the production serves informational, cultural, or educational purposes, Article 85 may help support lawful processing.
4. Academic Research and Publication: Universities, scholars, and researchers may use personal data in papers, studies, case analysis, or historical work. Article 85 can support academic freedom where publication of certain personal details is relevant to the research objective.
5. Artistic and Creative Expression: Artists may use real-world references, portraits, public imagery, or social themes involving individuals. Article 85 recognizes that creative expression may require flexibility, especially where the work has artistic or cultural significance.
6. Literary Works: Writers, biographers, essayists, and authors may rely on real-life events and people to produce books or literary commentary. Article 85 can apply where the use of personal data is part of genuine literary expression.

Dependencies

1. National Member State Laws: Article 85 does not work in isolation. Its practical effect depends heavily on how each EU Member State has implemented it. This means businesses, publishers, researchers, and creators must understand the local legal framework before relying on it.
2. Fundamental Rights Balancing: The article depends on a balancing exercise between two fundamental rights: privacy and freedom of expression. This legal balance is often influenced by courts, regulators, and constitutional principles.
3. Nature of the Content: Whether Article 85 applies may depend on the nature of the material being published or processed. Public interest journalism is more likely to receive protection than content that is purely sensational or invasive without a clear informational value.
4. Role of the Data Subject: The identity and public role of the individual involved can also matter. Public officials, politicians, celebrities, or people involved in public controversies may have a different privacy expectation than private individuals in non-public matters.
5. Sensitivity of the Data: If the processing involves highly sensitive personal data, such as health information, political opinions, or criminal allegations, the balancing exercise becomes more serious and requires stronger justification.
6. Editorial and Institutional Controls: Organizations that rely on Article 85 often need internal review systems, editorial standards, legal consultation, and ethical policies to support responsible decision-making.

Tools and Technologies

1. Editorial Review Platforms: Media houses and publishing teams often use editorial workflow systems to review articles, interviews, and visual content before publication. These tools help assess whether personal data use is justified and necessary.
2. Consent and Rights Management Systems: Even when Article 85 may provide flexibility, creators and institutions still benefit from systems that track permissions, releases, objections, and legal review notes.
3. Secure Data Storage: Journalistic and academic materials often include sensitive interviews, documents, or source records. Secure cloud storage, access controls, and encryption are useful for reducing unauthorized exposure.
4. Redaction and Anonymization Tools: Sometimes full identity disclosure is not necessary. Redaction software and anonymization tools help limit unnecessary privacy risks while still allowing expression or publication.
5. Legal and Compliance Review Tools: Organizations may use GDPR compliance platforms, documentation tools, and policy management systems to justify why certain content falls under Article 85 protections.
6. Digital Asset Management Systems: Writers, journalists, universities, and creative teams often manage large collections of photos, recordings, and archives. These systems help organize content while maintaining better oversight over personal data use.

Let’s Wrap

Article 85 of the GDPR plays a very important role in preserving democratic values, creativity, education, and open public discussion. It reminds us that personal data protection is essential, but it should not be used to silence journalism, restrict academic work, weaken artistic expression, or block literary voices.

The real purpose of Article 85 is balance. It does not ignore privacy, and it does not give unlimited freedom to publish personal data without thought. Instead, it asks EU Member States to create legal rules that respect both sides fairly.

For media organizations, researchers, authors, artists, and institutions, Article 85 is a reminder that freedom of expression and privacy must work side by side. When handled responsibly, this balance supports both individual dignity and a free, informed society.

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For further reading:

• EU GDPR – Article 84 (Penalties)
• EU GDPR – Article 83 (General Conditions for Imposing Administrative Fines)
• EU GDPR – Article 82 (Right to Compensation and Liability)
• EU GDPR – Article 81(Suspension of Proceedings)
• EU GDPR – Article 80 (Representation of Data Subjects)
• EU GDPR – Article 79 (Right to an Effective Judicial Remedy Against a Controller or Processor)
• EU GDPR – Article 78 (Right to an effective judicial remedy against a supervisory authority)
• EU GDPR – Article 77 (Right to lodge a complaint with a supervisory authority)
• EU GDPR – Article 76 (Confidentiality)
• EU GDPR – Article 75 (Secretariat)
• EU GDPR – Article 74 (Tasks of the Chair)
• EU GDPR – Article 73 (Chair)
• EU GDPR – Article 72 (Procedure)
• EU GDPR – Article 71 (Reports)
• EU GDPR – Article 70 (Tasks of the Board)
• EU GDPR – Article 69 (Independence)
• EU GDPR – Article 68 (European Data Protection Board)