Data Protection Laws and Freedom of Expression: Czech Republic 
Constitutional/Primary Law Background - see also ECHR and EU Charter
The Czech Constitution (as revised 2013) contains a wide range of rights in this area including a right to data protection. Article 17 protects the freedom of expression and the right to information which, alongside a specific prohibition on censorship, is enumerated with permissible limitations based on the ECHR. Article 10 protects a wide range of personality rights, namely:
- human dignity, personal honour, good reputation and name (in Article 10(1)),
- protection from unauthorized intrusion to private and family life (in article 10(2)),
- protection from misuse of personal data including unauthorised gathering or public revelation (in Article 10(3)).
Article 12 protects the inviolability of the home/domicile, with limitations based on Article 8(2) of the ECHR other than as regards search in a criminal proceeding when these are more specifically enumerated. Article 13 protects the confidentiality of communications and records (even if privately kept) except as designated by law.
The first relevant protection of freedom of expression, inviolability of domicile and secrecy of letters dates to the Basic Law on the General Rights of the Citizen as promulgated by the Austrian Empire in 1867 (see Austria Report). Similar rights were included in the 1920 Czechoslovak Constitution (see articles 113(1), 112 and 116). The current wording and the wider protection of rights can be traced to the Czechoslovak Charter of Fundamental Rights and Basic Freedoms 1991, these rights being incorporated in the Czech law when it became autonomous in 1993.
First-Generation Statutory Law
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The Act on the Protection of Personal Data in Information Systems was adopted by the Czechoslovak Federal Assembly on 29 April 1992.
Special Expression Derogation
There was no provision related to this matter.
Broad Expression Derogation
There was no provision related to this matter.
Personal Exemption
There was no provision related to this matter.
Knowledge Facilitation Framework
There was no provision related to this matter.
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Parliamentary Debates
Introducing the Data Protecting Act, MP SL Rynda mentioned that a number of rights provided for in the Czechoslovak Charter of Fundamental Rights and Freedoms were affected by the operation of information systems. These rights included the right to freedom of expression and the right to information. MP Rynda noted that the various affected rights may conflict.[1] However, no further mention was made as to how such a conflict was addressed by the Act. No other relevant debates were recorded.
Second-Generation Statutory Law
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A Personal Data Protection Act aimed at implementing Directive 95/46 was adopted by the Czech Parliament on 6 April 2000 and entered into force on 1 June 2000. The Czech Republic joined the EU (and EEA) itself on 1 May 2004.
Special Expression Derogation
The Czech Data Protection Act did not provide for a media, literary or artistic derogation at all from any part of the data protection scheme. Accordingly, the data quality principles, the proactive and retroactive transparency rules, the sensitive information rules as well as the legitimating ground, notification of processing and data export conditions were formally applicable in secondary law to the processing of personal data even for journalistic purposes.
Broad Expression Derogation
There was no provision related to this matter.
Personal Exemption
Pursuant to Art. 3(3), processing of personal data by natural persons for exclusively personal needs was excluded from the Act’s application.
Knowledge Facilitation Framework
With the exception of the proactive indirect transparency rule no general derogations were provided for knowledge facilitation purposes. Art. 11(3)(a) provided that where the processing personal data for the purposes of state statistic services, scientific or archival purposes and the provision of such information would involve a disproportionate effort or inadequately high costs or if specifically provided for by a special act, the controller may be exempted from the proactive indirect transparency rule. Sensitive data could be processed ‘exclusively for archival purposes pursuant to a special Act’ (art. 9(ch)). However, no exemption was made for the private sector. Similarly, an exemption was made for the public sector to derogate from the legitimating ground condition for exclusively archival purposes pursuant to a special Act.
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Parliamentary Debates
There were no substantive debates in either of the parliamentary Chambers on the special expression, the knowledge facilitation derogation or the personal exemption.
Brief mention of the processing for journalistic purposes was made by Senator Jiří Šenkýř as an example for potential conflict of laws raised by the proposed Act. The Senator stated that the press law provided for the protection of journalists’ sources of information vis-à-vis courts and other state organs but that the Act being proposed required the notification of the subject on which journalistic data is collected.[2]
Third-Generation Statutory Law
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The Czech Republic adopted a third generation Act on Personal Data Processing (Act No 110/2019) on 12 March 2019.
Special Expression Derogation
The Czech law generally authorizes any processing that engages in journalistic purposes or the purposes of academic, artistic or literary expression in a ‘reasonable manner’ (s. 17(1)). This authorization, which would appear to disapply the data protection principles, sets out a permissive public interest test. The Data Protection Act only subjects journalism to minimal duties in relation to proactive transparency when personal information is directly collected from individuals (sec. 18). In sum, not only are journalists only ever expected to ‘adequately’ inform data subjects solely of their identity, but this requirement can be excluded if it would require ‘disproportionate effort’ or prove ‘impossible’. As an alternative to complying with these provisions, a journalist may publish general information online which sets out the personal data processing which they usually perform (with the exception of information on the source which is fully exempt) (s. 18(2)). The treatment of reactive subject access returns to a minimal duties approach since this right is entirely eliminated where the data have not been published by the controller and even in other cases may be excluded where the data have not been published by the controller and, for example, on grounds of disproportionate effort. With regard to sensitive information rules, the Czech law sets down an objective or strict public interest test from the default rules as regards all the sensitive data categories (s. 17(1)). Finally, the Czech law adopts a casuistic and rather unclear approach to data protection’s integrity duties. While the need for a general legal basis is superseded, the duty to maintain a register of processing is not clearly disapplied. Finally, the relationship between such general permission and the data export provisions is yet more ambiguous since, whilst the export of data must involve processing, it is clearly processing of a special (and specifically regulated) sort (s. 16(1)). These provisions do not explicitly establish the priority of the special expression derogation over the Knowledge Facilitation Framework.
Broad Expression Derogation
No special provision adopted in this matter.
Personal Exemption – see GDPR, art. 2(2)(c)
Knowledge Facilitation Framework – see also GPDR, art. 5(1)(b) (compatibility), art. 5(1)(e) (time limits) and art. 89(1) (appropriate safeguards)
Section 16 emphasizes that within the area of scientifric or historical research and statistical purposes ‘the controller or processor shall ensure compliance with specific measures to protect the interests of the data subject, corresponding to the state of the art, implementation costs, nature, scope, context and purpose of processing’ and provides a indicative list of potential measures (s. 16). The Article goes on to provide that the right of access, rectification, restriction and objection (including so far as relevant the data protection principles) may be postponed where this is necessary and reasonable in the pursuit of scientific or historical research or for statistical purposes. It further stated that the right of access (including in so far as relevant the data protection principles) shall not apply insofar as the provision of such information would constitute a disproportionate effort. Finally, the Article provides that special data may be processed if this furthers such purposes where this is not overriden by the legitimate interests of the data subject but only in non-identified form.
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Parliamentary Debates
Special Expression Derogation
MP and Rapporteur for the Constitutional Committee Marek Benda in the first reading expressed doubt whether the government’s proposed media exemption would be sufficient to ensure an adequate balance between freedom of expression and data protection.[3] MP Jakub Michálek observed that the rules on the freedom to access information were highly fragmented. MP Leo Luzar, too, addressed the proposals provisions on the processing of personal data for journalistic purposes or for the purpose of academic, artistic or literary expression. The MP, in particular, seemed to criticize the exemptions set out for the processing of sensitive data as data would be under the legal control of the employer of the journalist, rather than the journalists themselves. How these employers would have to handle such sensitive data was, pursuant to MP Luzar, not regulated in the proposed Act. Such data should no longer enjoy special protection once they ceased to serve journalistic purposes. It should be ensured that such data were deleted at this point.[4]
MP Patrik Nacher, in contrast, argued that the processing of personal data for journalistic, artistic and academic purposes was not sufficiently protected. In the second reading, the same MP recommended that the Chamber adopt an amendment to sections 16 to 21 for an exception for journalistic, academic and artistic activities as a compromise proposing to replace a general exception with a case-by-case approach.[5] MP Tomas Martinek supported the proposed amendment on the journalistic exception.[6] Another amendment was introduced by MP Leo Luzar. He proposed to change the Draft Act to the effect that codes of conduct should further specify how journalists are to ‘handle’ personal data. Compliance with such codes of conduct should be supervised by the Office for Personal Data Protection.[7] The amendment was, however, not adopted.
In the third reading of the Draft Act, the Deputy Prime Minister and Minister of the Interior Jan Hamáček noted that wherever the GDPR allowed for exemptions, the Czech Republic would seek to use them adequately.[8] MP Leo Luzar once again expressed his concern that the lack of appropriate controls of the processing of personal data for journalistic purposes would threaten the right to privacy and his regret that his amendment which would have required the passing of a journalistic code of conduct was rejected.[9] MP Thomas Martinek, in contrast, supported what he called ‘the intricately negotiated journalistic exception’.[10] MP Jakub Michálek advocated for his amendment, which would clearly assign the Data Protection Authority the responsibility to examine instances of conflict between the journalistic freedom of expression and individual data protection thereby relieving courts. His proposal was supported by MP Katerina Valachová, but not eventually adopted.[11]
Knowledge Facilitation Framework
Particularly with reference to the country’s communist past, MP Marek Benda questioned whether the proposed Act sufficiently incorporated articles 89-91 GDPR guaranteeing the processing of personal data for archival, statistical, scientific or historical research purposes.[12]
In the second reading, MP Marek Benda introduced the Constitutional Committee’s proposal for amending the government’s draft Act to broaden the exceptions for the processing for scientific, historical research and statistical purposes. The proposed broader exemption for these types of processing would, it was argued, align the Czech regulation with that of its neighbouring countries. MP Patrik Nacher concurred.[13] MP Jana Levová, proposed to derogate from Art. 9(1) GDPR, which would allow the processing for scientific or historical research or statistical purposes of sensitive data without a data subject’s consent, provided that such processing is necessary for those purposes and the controller’s interests thus significantly outweigh the data subject’s interest in the protection of her data. Without explaining its background, MP Karel Rais put forward an amendment concerning ‘archival work and reduction of responsibilities for researchers … and statistics’.[14] His amendment was not adopted.
[1] Parliamentary Debates (29 April 1992) https://www.nrsr.sk/dl/Browser/Document?documentId=84559 (last accessed 4 April 2021).
[2] Parliamentary and legislative debates available at https://www.psp.cz/sqw/historie.sqw?T=374&O=3 (last accessed 27 November 2020).
[3] Czech Republic, ‘Parlament České republiky Polsanecká snemovna 2018’ (18 April 2018), 473 https://www.psp.cz/eknih/2017ps/tesnopis/tz012.pdf (last accessed 27 November 2020).
[4] Ibid, 485.
[5] Czech Republic, ‘Parlament České republiky POSLANECKÁ SNĚMOVNA 2018 VIII. volební období’ (date unclear) 259, https://www.psp.cz/eknih/2017ps/tesnopis/tz016.pdf (last accessed 27 November 2020); for an overview of the various proposed amendments, see https://www.psp.cz/sqw/historie.sqw?o=8&t=138 (last accessed 27 November 2020).
[6] Czech Republic, ‘Parlament České republiky POSLANECKÁ SNĚMOVNA 2018 VIII. volební období’ (date unclear) 477 https://www.psp.cz/eknih/2017ps/tesnopis/tz019.pdf (last accessed 27 November 2020); this amendment was not submitted as a written amendment and—as far as could be judged from the available sources online—not adopted.
[7] Ibid, 488.
[8] Czeck Republic, ‘Parlament České republiky POSLANECKÁ SNĚMOVNA 2018 VIII. volební období’(date unclear) 465 https://www.psp.cz/eknih/2017ps/tesnopis/tz020.pdf (last accessed 27 November 2020).
[9] Ibid, 468-469.
[10] Ibid, 469.
[11] Ibid, 470-71.
[12] Czech Republic, ‘Parlament České republiky Polsanecká snemovna 2018’ (18 April 2018) 485. https://www.psp.cz/eknih/2017ps/tesnopis/tz012.pdf (last accessed 27 November 2020).
[13] Czech Republic, ‘Parlament České republiky POSLANECKÁ SNĚMOVNA 2018 VIII. volební období’ (date unclear) 256, https://www.psp.cz/eknih/2017ps/tesnopis/tz016.pdf (last accessed 27 November 2020).
[14] Czech Republic, ‘Parlament České republiky POSLANECKÁ SNĚMOVNA 2018 VIII. volební období’ (date unclear) 483, https://www.psp.cz/eknih/2017ps/tesnopis/tz019.pdf (last accessed 27 November 2020).
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