Data Protection Laws and Freedom of Expression: Greece
Constitutional/Primary Law Background - see also ECHR and EU Charter
The contemporary Greek Constitution (as revised 2008) contains a wide range of rights in this area including data protection rights. Article 14 protects the right of persons to express and propagate thoughts so long as this in compliance with the laws, establishes freedom of the press and prohibits prevention measures including censorship and (subject to some enumerated exceptions) prohibits the seizure of publications before or after circulation. Article 16 provides for the freedom of art, science, research and teaching. Article 9 provides for the inviolability of private and family life, protects the home as a sanctuary and prohibits searches except under law and in presence of judicial representatives. Article 9A sets out a general protection from the collection, processing and use of personal data (especially by electronic means) and supervision by an independent authority, both as specified by law. Article 19 provides for absolute inviolability of communications subject only to legally authorised exemption for the judicial for reasons of national security or for investigating especially serious crimes. This Article also provides for an independent authority to ensure this as specified by law and prohibits the use of evidence acquired in violation of articles 9 or 9A. Article 5(2) provides that, subject to exceptions permitted in international law, all residences enjoy full protection of inter alia their honour irrespective of nationality, race, language or of religious or political beliefs.
The 1826 Constitution provided the first protection of freedom of expression (art 26) and also (personal) honour (art 12). The freedom of expression provisions provided Greeks with the right to publish their thoughts and opinions freely without censorship whilst avoiding crossing the bounds of modest, insults and personal slander and attacks on principles of the Christian religion. The 1844 Constitution did not include any specific reference to honour, continued with a modified freedom of expression provision (s. 10) and set out protections for the inviolability of dwelling (with searches based only on legal provisions) (s. 8) and secrecy of letters (s. 14). With the exception of Section 9A, the current rights provisions noted in the previous paragraph trace back to the 1975 Constitution. Finally, the data protection provisions found in Section 9A arose from revisions made in 2001.
First-Generation Statutory Law
Greece did not adopt any first-generation data protection legislation.
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Second-Generation Statutory Law
Greece enacted data protection legislation including implementing Directive 95/46 through Law 2472/1997.
Special Expression Derogation
The Greek law did not establish any derogation for literary and artistic expression and only very limited ones for journalistic processing. In sum, the law continued to apply the data quality principles, the need for a legitimating ground for processing, reactive transparency, the data export provisions, the need to notify processing to the Data Protection Authority (DPA) and DPA oversight in full to journalistic purposes. It set rule-bound exemptions from the proactive direct and indirect transparency rules, declaring that journalists can be exempted from this provision but only when the information collected ‘refers to public figures’ (art. 11(5)). As regards sensitive data, the law provided for a journalistic vires to process based on compliance with strict rule-based criteria. It was accordingly stated that a permit needed to be obtained from the DPA which was to be ‘exceptionally’ granted but only when ‘processing concerns data pertaining to public figures’, ‘that such data are in connection with the holding of public office or the management of third parties’ interests’, ‘processing is absolutely necessary in order to ensure the right to information on matters of public interest, as well as within the framework of literary expression’ and ‘provided that the right to protection of privacy and family life is not violated in any way whatsoever’ (art. 7(2)(c)).
Broad Expression Derogation
There was no specific provision.
Personal Exemption
The law exempted the processing carried out by natural persons in the course of a purely personal or household activity (art. 3(2)(a)).
Knowledge Facilitation Framework
The law permitted personal data being kept beyond the permitted period for historical, scientific or statistical purposes, ‘provided that it considers that the rights of the data subjects or even third parties are not violated in any given case’ (art. 4(1)(d)). The Act made provisionf for a DPA permit to granted lifting prohibition of the processing of sensitive data provided that ‘anonymity is maintained and all necessary measures for the protection of the persons involved are taken’ (art. 7(2)(g)). No other derogations were provided for.
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Third-Generation Statutory Law
Greece adopted third-generation data protection legislation implementing the GDPR Law 4624/2019.
Special Expression Derogation
Article 28 of the new law significant broadens and liberalizes the special expression regime in Greece. Processing of personal data for academic, artistic or literary expression and journalistic purposes is permitted if the data subject has provided his or her consent or the processed data are being manifestly made public by the data subject or if the processing is necessary to ensure freedom of expression and information. The processing of sensitive personal data is limited to what is strictly necessary. Chapter II-V and IX, except for Arts. 5, 28-29 and 32 GDPR are explicitly rendered inapplicable. This article therefore explicitly establishes its priority over the Knowledge Facilitation Framework.
Broad Expression Derogation
Article 28, as elaborated above, applies “[t]o the extent necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information”, including but not limited to journalistic purposes and the purposes of academic, artistic or literary expression. Whilst focused on special expression, it in principle extends beyond this to also encompass broad expression.
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)
Special data may be processed for archiving purposes in the public interest (art. 29(1)) and also scientific or historical research purposes or statistics where the interests of the controller are overriding (art. 30(1)) so long as in each case the controller takes suitable and specific measures to protect the data subject's interests which may in particular include access restrictions, pseudonymisation, encryption and the designation of the Data Protection Officer. As regards archiving purposes in the public interest, articles 16 (right to rectification) 18(1)(a), (b) and (d) (various rights to restriction), 20 (right to data portability) and 21 (right to object) of the GDPR may be derogated from if it leads at least to seriously impairment of objectives and in the case of last three provisions is deemed to be necessary. Articles 15, 16, 18 and 21 may be restricted where processing for scientific or historical research purposes or historical purposes on these same twin bases and Article 15 entirely excluded where the personal data are necessary for scientific research purposes and provision of information would entail disproportionate effort (Art. 30).
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