SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
of anonymity in expression and the use of the public interest doctrine. In both areas, the protection
of privacy can be interpreted as a safeguard for robust and more uninhibited expression.
In contrast, it is also true that, when these rights collide, the balancing exercise inevitably
triggers the prevalence of one right and the restriction of the other. These are often more difficult
cases, in which international standards can be used as a guide to adopt a decision. As a matter of
fact, the tension between these rights does not necessarily imply a negative outcome per se. It
merely highlights that there are circumstances where the scope of the right to freedom of expression or privacy has been legitimately subject to limitations. Some examples of this can be found
in this paper’s categories related to personal information about public officials, the protection of
health-related information, or the rights of children.
However, there are also judgments where the protection of one of these rights leads to the
illegitimate sacrifice of the other. This can be seen in rulings that, for example, deny access to information about the salaries of public officials, without even considering the public interest such
information entails. For more detailed information regarding the right of access to information, a
future paper by Global Freedom of Expression will further analyze the case law on this topic.
The rise of information and communication technologies has caused the right to data protection to become an integral part of this debate. This right, recognized in several legislations and
constitutions around the world in various degrees, and in Article 8 the Charter of Fundamental
Rights of the European Union, has become central in shaping the relationship between expression
and privacy in the digital sphere. The protection of personal data has also been subject to intense
judicial activity. Although its content touches upon several aspects of autonomy, we will only focus on the rights related to privacy and freedom of expression.
Data protection as a fundamental right, as the case law shows, has both served to reinforce
freedom of expression or come into direct conflict with it. On the one hand, data protection has enhanced freedom of expression by ensuring that the correct procurement, processing, and retention
of personal information is not misused. This can be seen in decisions related to surveillance in the
context of national security, the protection of citizens against facial recognition in public places,
or the use of personal information to track the political activity of individuals. On the other hand,
an expanding interpretation of the right has given rise to cases where imposing liability trumps the
right to access information or limits the free exercise of journalism.
As a final note, we would like to make the reader aware of the fact that this paper will not
analyze the discussion around the so-called right to be forgotten and the case law that arose after
the Costeja Case before the Court of Justice of the European Union (CJUE) in 2014. This topic is
analyzed in another publication that is part of this collection.
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