Article 85 — Processing and freedom of expression and information

Article 85 deals with one of the GDPR’s most difficult constitutional conflicts. It asks how personal data should be protected without silencing journalism, public debate, academic inquiry, art, literature and other forms of communication that are essential to a democratic society.

The basic principle is:

Data protection and freedom of expression are both fundamental rights. Neither automatically defeats the other. Member States must create laws that allow both rights to operate, and any exemption from the GDPR must be genuinely necessary for that reconciliation.

Article 85 therefore does not create a general “media exemption” from the GDPR. It creates a structured legal mechanism under which Member States may, and in appropriate cases must, relax particular GDPR requirements where applying them fully would make legitimate journalistic, academic, artistic or literary expression impossible or excessively difficult.

The Article contains three connected rules:

1. Member States must reconcile data protection with freedom of expression and information through legislation.
2. For journalistic, academic, artistic and literary processing, Member States must provide necessary exemptions or derogations from specified GDPR chapters.
3. Member States must notify those national rules and later amendments to the European Commission.

A major recent clarification came from the CJEU on 9 July 2026 in Legal Newsdesk Sweden, Case C-199/24. The Court held that Article 85 does not permit Member States to remove processing from the GDPR merely because it has some connection with freedom of information. Nor does placing criminal judgments online for payment, without genuine editorial treatment and factual verification, automatically constitute journalism.

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1. The two fundamental rights being reconciled

Article 85 sits between two fundamental rights in the Charter of Fundamental Rights of the European Union.

Article 8 of the Charter protects personal data. It requires personal data to be processed fairly, for specified purposes and on the basis of consent or another legitimate legal basis. It also recognises rights of access and rectification and requires independent supervision.

Article 11 of the Charter protects freedom of expression and information. It includes the freedom to hold opinions and to receive and impart information and ideas without public-authority interference and regardless of frontiers. It also requires respect for media freedom and pluralism.

Artistic and academic expression are also linked to Article 13 of the Charter, which protects the freedom of the arts and scientific research. Privacy under Article 7 may additionally be involved because personal-data publication often interferes with private life, home, family or communications. The legal exercise is therefore not merely a technical competition between one GDPR provision and a newspaper. It is a balance among several fundamental rights.

Illustration

A newspaper investigates whether a senior public official has improperly awarded government contracts to relatives. The investigation may involve processing:

• names;
• family relationships;
• company ownership records;
• correspondence;
• bank or property information;
• photographs;
• political activities. Data protection protects the individuals concerned from excessive, inaccurate or unfair use of that information. Freedom of expression protects the newspaper’s ability to investigate and inform the public about possible corruption. If every data subject could demand immediate access to the journalist’s investigation file, the investigation might be exposed before publication, sources might be identified and evidence might be destroyed. But if the newspaper were completely exempt from every data-protection rule, it could publish irrelevant medical details or inaccurate allegations without meaningful accountability. Article 85 requires a legal framework that protects investigative journalism without giving journalists unlimited freedom to misuse personal data.

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2. Neither right automatically takes priority

A common error is to assume that freedom of expression always defeats privacy where information is published. The opposite error is to assume that the GDPR always defeats publication because personal data are involved.

Neither proposition is correct.

The rights to personal data protection and freedom of expression are of equal constitutional importance. The law must seek a fair balance that preserves the essence of both rights.

Illustration

A newspaper publishes evidence that a minister accepted undisclosed payments. The publication clearly concerns public accountability. The minister’s data-protection rights cannot ordinarily be used simply to suppress accurate information of major public interest. Now suppose the newspaper also publishes:

• the minister’s child’s medical records;
• the child’s home address;
• unrelated private photographs;
• school attendance information. Those details may add nothing to the corruption story and could create serious danger. Freedom of expression does not mean that every piece of personal information connected to a public figure may be published. The correct question is not: “Is this journalism?” The fuller questions are:

• What information is being processed?
• Why is it being processed?
• Does it contribute to public discussion?
• Is the person a public figure or a private individual?
• Is the information accurate?
• How was it obtained?
• Is the publication proportionate?
• Could the objective be achieved with less intrusive material?
• What consequences may follow?
• Which GDPR requirement would obstruct legitimate expression?
• Is the claimed exemption genuinely necessary?

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3. Article 85 is primarily an instruction to Member States

Article 85 does not itself specify one uniform EU-wide journalism exemption. It requires each Member State to create its own legislative framework.

This means that the practical rules may differ considerably between Member States.

One Member State may provide broad exemptions for:

• data-subject access;
• transparency;
• purpose limitation;
• supervisory investigation.

Another may retain more GDPR obligations but apply them flexibly through case-specific balancing.

Recital 153 acknowledges that exemptions and derogations may differ and says that the law of the Member State to which the controller is subject should apply. It also emphasises that concepts relating to freedom of expression, including journalism, must be interpreted broadly because of their democratic importance.

3.1 Why the rules differ

Freedom of the press is closely connected with national:

• constitutional traditions;
• defamation laws;
• confidentiality protections;
• source-protection rules;
• media-regulation systems;
• court-publication practices;
• access-to-information laws.

Article 85 preserves room for those traditions while imposing EU-law boundaries.

The result is a partly decentralised system. The meaning of journalistic purpose is an EU-law concept requiring coherent interpretation, but the precise exemptions available depend heavily on the relevant Member State’s law.

Illustration

An investigative publication operates in three Member States. Its ability to delay an Article 15 access response or withhold source information may depend on:

• where the relevant controller is established;
• which national Article 85 legislation applies;
• the purpose of the particular processing;
• whether the national exemption is valid under EU law;
• whether disclosure would actually threaten journalistic activity. A publisher cannot assume that an exemption available in one Member State applies identically across the EU.

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4. Paragraph 1: The general duty to reconcile

Article 85(1) provides:

Member States shall by law reconcile the right to protection of personal data with freedom of expression and information.

The words“shall by law” are important.

Member States must provide a legal framework. They cannot leave the issue entirely to informal administrative preference. The national law should be:

• accessible;
• sufficiently clear;
• foreseeable;
• consistent with the Charter;
• capable of guiding journalists, artists, researchers, data subjects, courts and regulators.

The national law need not predict every factual scenario. A balancing test necessarily requires judgment. But it should identify the legal principles and exemptions that govern the reconciliation.

4.1 “Reconcile” does not mean abolish one right

Reconciliation means allowing both rights to operate as far as possible.

A Member State should not:

• exempt all publishers from the entire GDPR;
• subject every journalist to every GDPR obligation without modification;
• make data-protection rights available only if the person proves defamation;
• remove access to all judicial remedies;
• declare that any online publication is journalistic.

The 2026 Legal Newsdesk Sweden judgment makes this especially clear. The CJEU held that Article 85(1) cannot justify national legislation that creates derogations from GDPR chapters for processing purposes beyond those identified in Article 85(2). A Member State also cannot leave the affected person with only a defamation claim while taking away remedies conferred directly by the GDPR.

Illustration

A national law provides that any website with a publication certificate is completely outside the GDPR, including:

• remedies;
• compensation;
• supervisory oversight;
• data-subject rights. A commercial database then publishes criminal convictions without editorial treatment. The national law cannot rely on the label “freedom of expression” alone. The court must examine whether:
• the processing is genuinely for a protected Article 85(2) purpose;
• each exemption is necessary;
• the affected person retains the Chapter VIII remedies that Article 85 does not authorise Member States to remove.

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5. Article 85(1) and Article 85(2) must be read together

Paragraph 1 speaks broadly of freedom of expression and information. Paragraph 2 more specifically permits exemptions and derogations for processing carried out for:

• journalistic purposes;
• academic expression;
• artistic expression;
• literary expression.

The recent CJEU judgment explains that paragraph 1 is not an independent power allowing Member States to disapply the GDPR for every type of expression-related processing. It must be read in light of paragraph 2, which defines exhaustively the context in which derogations from the listed GDPR chapters may be adopted.

This creates an important distinction:

• Freedom of expression remains relevant throughout GDPR interpretation.
• Major legislative derogations under Article 85 are confined to the purposes listed in paragraph 2.

[!example] Illustration A person posts an ordinary product review containing a shop employee’s first name. Freedom of expression may be relevant when interpreting lawful basis, legitimate interests and proportionality. But a Member State cannot necessarily exempt all online reviews from entire GDPR chapters simply by describing them as “information.” For a broad Article 85 derogation, the processing must fall within journalistic, academic, artistic or literary expression, as properly understood.

6. Removal of the word “solely” from the operative text

The predecessor provision in Directive 95/46 referred to processing carried out solely for journalistic, artistic or literary purposes. Article 85(2) GDPR does not use “solely,” although Recital 153 still contains that word.

The operative Article prevails over the recital. The removal suggests that mixed-purpose processing is not automatically excluded.

Illustration

A professional newspaper publishes investigative journalism and earns advertising revenue. The processing has:

• a journalistic purpose;
• a commercial purpose. The commercial purpose does not automatically destroy the journalism exemption. Most professional journalism requires revenue. However, commerce remains relevant where the supposed journalistic purpose is only a label.

[!example] Illustration A company copies court documents into a searchable database, charges users for access, applies no editorial selection and provides no contextual reporting. The company cannot obtain a broad journalism exemption merely because it disseminates information and earns money. The court must examine the actual objective and method of processing. The 2026 Legal Newsdesk Sweden judgment confirms that commercially making criminal decisions available online does not in principle qualify as journalistic processing merely because information is being communicated.

7. Paragraph 2: Exemptions and derogations

Paragraph 2 requires Member States to provide exemptions or derogations where necessary for the recognised expressive purposes.

An exemption may remove a GDPR requirement from a defined category of processing.

A derogation may modify, restrict or condition how a requirement applies.

[!example] Illustration A national law might provide that Article 14’s duty to inform a data subject does not apply during a confidential journalistic investigation where informing the person would reveal the investigation or endanger sources. That is an exemption or derogation from the transparency obligation. Another law might delay access rights rather than eliminate them permanently. That would be a more limited derogation. The correct design should be no broader than necessary.

8. Chapters from which national law may derogate

Article 85(2) lists the GDPR chapters that may be modified for protected expressive purposes.

8.1 Chapter II: Principles

Chapter II includes:

• lawfulness;
• fairness;
• transparency;
• purpose limitation;
• data minimisation;
• accuracy;
• storage limitation;
• security and confidentiality;
• accountability;
• lawful bases;
• consent;
• special-category data;
• criminal-conviction data.

Applying all these rules without adjustment can obstruct legitimate reporting.

Illustration: purpose limitation

A journalist receives payroll data originally created for employment administration and uses it to investigate public-fund misuse. Strict purpose limitation might appear to prevent the secondary journalistic use. A necessary national derogation may allow it, subject to proportionality and public-interest safeguards.

Illustration: special-category data

An investigative report examines whether a political organisation secretly discriminated against people on religious grounds. Reporting may require processing:

• religious affiliation;
• political opinions;
• racial or ethnic origin. These are Article 9 data. A national Article 85 framework may allow necessary processing for journalism while retaining safeguards against gratuitous disclosure. An exemption does not mean that accuracy, security or fairness become irrelevant. These principles may remain critical to the balancing exercise even where their strict GDPR application is modified.

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8.2 Chapter III: Data-subject rights

Chapter III includes:

• information;
• access;
• rectification;
• erasure;
• restriction;
• portability;
• objection;
• automated decision protections.

These rights can clash directly with confidential investigation.

Illustration: access

A corporation’s director submits an Article 15 request to a journalist investigating bribery. The journalist’s file contains:

• confidential-source identities;
• witness statements;
• unpublished allegations;
• planned lines of inquiry;
• information about other people. Immediate full access could:
• identify sources;
• enable witness pressure;
• allow evidence destruction;
• undermine publication. A national Article 85 derogation may restrict access to the extent necessary. But the exemption should not automatically cover unrelated administrative material.

Illustration: rectification

A newspaper archive contains a historical report stating that a person was charged with an offence. The person was later acquitted. A complete rewriting of the original article may distort the historical record. But adding a clear update or contextual link may reconcile:

• archival integrity;
• accuracy;
• the person’s reputation.

Illustration: erasure

A politician requests deletion of an accurate article about old corruption proceedings. Factors include:

• continuing public interest;
• time elapsed;
• current public role;
• accuracy;
• acquittal or conviction;
• prominence in search results;
• archival value. The right to erasure is not automatically unavailable, but it must be balanced with public access to historical information.

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8.3 Chapter IV: Controller and processor duties

Chapter IV includes obligations concerning:

• privacy by design;
• joint controllers;
• processor contracts;
• records;
• security;
• breach notification;
• DPIAs;
• DPOs.

Some obligations may burden small independent journalists or expose confidential methods.

[!example] Illustration A freelance investigative journalist stores confidential notes. Requiring full public documentation of purposes, sources and recipients could threaten source confidentiality. However, basic security may remain essential precisely because source information is sensitive. Article 85 should not be interpreted as permission to store confidential source files without passwords, access restrictions or backups. The appropriate reconciliation may exempt the journalist from particular documentation or disclosure duties while retaining proportionate security requirements.

8.4 Chapter V: International transfers

Journalism frequently crosses borders.

A reporter may:

• work with an editor abroad;
• communicate with a foreign source;
• store material using an overseas service;
• participate in an international investigation;
• share evidence with partner newsrooms.

Strict transfer rules may make cross-border journalism difficult. National law may provide necessary derogations.

[!example] Illustration A European journalist sends evidence of corruption to an investigative consortium in a third country. The transfer may be essential for publication and source protection. However, a broad exemption should not permit the newspaper’s advertising department to transfer subscriber profiles abroad without safeguards. The purpose must be assessed operation by operation.

8.5 Chapter VI: Independent supervisory authorities

National law may adjust supervisory powers where ordinary inspection would threaten:

• journalistic sources;
• editorial confidentiality;
• unpublished materials;
• press freedom.

[!example] Illustration A supervisory authority demands access to every communication between a journalist and confidential sources. Ordinary investigative access could expose whistleblowers. A national derogation may limit the authority’s power or require judicial authorisation. This does not necessarily mean that journalistic processing is completely beyond supervision. A tailored model may allow investigation without revealing protected source material.

8.6 Chapter VII: Cooperation and consistency

Cross-border supervisory cooperation can also be modified where necessary to protect expressive activity.

This may concern:

• lead-authority cooperation;
• exchange of investigation materials;
• EDPB consistency procedures;
• joint operations.

Again, necessity is essential. A Member State should not remove an entire media sector from cross-border accountability merely because cooperation is administratively inconvenient.

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8.7 Chapter IX: Specific processing situations

Chapter IX itself covers areas such as:

• public documents;
• national identification numbers;
• employment;
• research and archives;
• secrecy;
• religious bodies.

Derogations may be needed where these rules interact with journalism, academic work, art or literature.

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9. Chapter VIII is not listed

Article 85(2) does not list Chapter VIII, which contains:

• Article 77 complaints;
• Article 78 judicial remedies against supervisory authorities;
• Article 79 remedies against controllers and processors;
• Article 80 representation;
• Article 82 compensation;
• Articles 83 and 84 sanctions.

This omission is extremely important.

Member States cannot use Article 85 to abolish GDPR remedies completely.

The CJEU confirmed in Legal Newsdesk Sweden that national law cannot leave a person whose data are processed with only criminal or civil defamation proceedings while excluding remedies directly guaranteed by the GDPR.

Illustration

A commercial criminal-record database claims journalistic protection. The national law says affected people:

• cannot complain to a supervisory authority;
• cannot bring an Article 79 claim;
• cannot seek Article 82 compensation;
• may sue only for defamation. That framework goes beyond Article 85’s permitted derogations. A person may suffer unlawful personal-data processing even where the published criminal judgment is factually accurate and therefore not defamatory. Data protection and defamation protect different interests:
• defamation focuses on reputation and false or damaging statements;
• data protection concerns lawful, fair, proportionate and transparent processing, including of true information.

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10. “Necessary to reconcile”

Necessity is the controlling condition in paragraph 2.

A derogation is not valid merely because it is convenient to journalists, publishers, academics or artists. It must be needed to preserve expressive freedom.

The analysis resembles proportionality under Article 52 of the Charter:

1. The restriction or exemption must be provided by law.
2. It must pursue a legitimate objective.
3. It must be suitable for that objective.
4. It must be necessary, meaning no comparably effective less restrictive measure is reasonably available.
5. It must maintain a fair balance and respect the essence of both rights.

The CJEU has emphasised that Article 85 exemptions must be interpreted strictly because paragraph 2 defines exhaustively the situations in which major derogations are available.

Illustration

A journalist argues that Article 15 access should never apply to any newsroom information. That is probably too broad. A narrower rule could protect:

• source identities;
• unpublished drafts;
• investigative methods;
• information whose disclosure would prejudice publication. Other information, such as the person’s subscription details, might remain accessible. The narrower approach protects journalism while preserving the data subject’s rights as far as possible.

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11. No blanket exemption for an entire profession

Article 85 is purpose-based, not status-based.

A person does not receive the exemption merely because they are:

• employed by a newspaper;
• registered as a journalist;
• an academic;
• an artist;
• an author;
• a broadcaster.

The question is whether the particular processing operation serves the protected purpose.

Illustration: newspaper

A newspaper processes:

1. information about a politician for an investigative article;
2. employee payroll files;
3. subscriber payment information;
4. advertising profiles;
5. CCTV at its office.

Only the first operation is clearly journalistic.

The other operations are:

• employment processing;
• customer administration;
• marketing;
• security.

The newspaper remains subject to the ordinary GDPR for those operations.

Illustration: artist

A photographer stores:

• portraits used in an exhibition;
• customers’ card details;
• employees’ health records;
• mailing-list contacts. The exhibition photographs may involve artistic expression. Payment and HR records do not become artistic merely because an artist controls them. This operation-by-operation approach prevents institutional labels from becoming blanket immunity.

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12. Meaning of “journalistic purposes”

The GDPR does not define journalism. Recital 153 says the concept must be interpreted broadly, reflecting the importance of expression in a democratic society.

Earlier CJEU case law held that activities can be journalistic where their object is to disclose information, opinions or ideas to the public, regardless of the transmission medium. The Buivids case, concerning a private individual who filmed police officers and uploaded the recording, confirmed that journalism is not confined to professional media organisations.

However, the 2026 Legal Newsdesk Sweden judgment adds important structure. The concept must be broad but cannot cover every form of public dissemination. The Court identified elements that distinguish journalism from mere republication or data distribution.

12.1 Public communication objective

The processing should aim to inform the public or disclose opinions or ideas.

Private recordkeeping is not journalism merely because publication might occur someday.

Illustration

A blogger investigates corruption and gathers records for a planned public report. The gathering stage may serve a journalistic purpose even before publication. By contrast, a private detective collects information for one commercial client. That is not automatically journalism.

12.2 Editorial treatment

Journalism normally involves:

• selection;
• prioritisation;
• editing;
• adaptation;
• contextualisation;
• editorial decisions.

The publisher need not rewrite every source document. But simply placing raw records online may lack the editorial activity that characterises journalism.

Illustration

A newspaper selects several court judgments, explains their context, verifies later appeals and writes an analysis of sentencing inequality. That has a strong journalistic character. A database automatically republishes every criminal judgment without context and sells name searches. That is much less likely to qualify.

12.3 Verification of factual allegations

Journalistic freedom carries responsibilities.

Factual allegations should be checked to a degree appropriate to:

• seriousness;
• urgency;
• source reliability;
• public interest;
• possible harm.

A journalist need not prove every fact with courtroom certainty before publication. But deliberate or reckless dissemination of unverified allegations weakens the claim to journalistic protection.

12.4 Ethical rules and professional standards

The CJEU referred to ethical rules and codes of conduct as relevant to journalistic classification.

Relevant standards may include:

• accuracy;
• source protection;
• distinction between fact and opinion;
• opportunity to respond;
• correction of significant errors;
• avoidance of gratuitous intrusion;
• protection of vulnerable people.

This does not mean that only members of a formal press council qualify. Citizen journalists may act journalistically. The focus is the nature and method of the activity.

12.5 Medium neutrality

Journalism may occur through:

• newspapers;
• radio;
• television;
• documentaries;
• podcasts;
• blogs;
• social media;
• livestreams;
• independent websites;
• video-sharing platforms.

The medium does not decide the issue. The purpose and manner of processing do.

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13. Preparatory processing is covered

Journalistic processing is not limited to the moment of publication.

It may include:

• researching;
• gathering;
• recording interviews;
• receiving leaks;
• organising notes;
• checking facts;
• selecting material;
• storing rejected information;
• editing;
• archiving.

The CJEU’s 2026 judgment recognised that “purposes” includes processing necessary for publication, including information considered and ultimately not published as part of editorial selection.

Illustration

A journalist receives 10,000 documents from a whistleblower but publishes only 20. The remaining documents may still have been processed for journalistic purposes because reviewing them was necessary to:

• verify allegations;
• select relevant evidence;
• avoid publishing false information;
• understand context. However, indefinite retention after the investigation ends must still be justifiable under the applicable national framework. Journalistic purpose should not become a permanent excuse for retaining every document forever.

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14. Citizen journalism

A person does not need:

• professional qualifications;
• press employment;
• a journalism degree;
• a press card;
• membership in an industry body

to process data for journalistic purposes.

In Buivids, the CJEU treated it as possible that a private person recording police officers and uploading the video could act for journalistic purposes, though the national court had to examine the actual objective.

Illustration

A resident records local officials dumping waste illegally and publishes a verified report explaining the public-health consequences. The activity may be journalistic despite the resident not being a professional reporter. But posting a neighbour’s private medical documents during a personal dispute is not transformed into journalism merely by making the post public. The decisive elements include:

• public-information objective;
• editorial or explanatory context;
• verification;
• public interest;
• proportionality;
• absence of a merely personal or malicious purpose.

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15. Public interest and curiosity

Information that interests the public is not necessarily information in the public interest.

Public interest may include:

• government conduct;
• public spending;
• corruption;
• public safety;
• environmental harm;
• serious corporate misconduct;
• functioning of courts;
• public-health risks;
• political accountability.

Public curiosity may concern:

• intimate relationships;
• medical conditions;
• family conflict;
• private photographs;
• gossip without social relevance.

[!example] Illustration A public official’s undisclosed financial interest in a government contractor contributes to democratic accountability. The official’s child’s unrelated medical condition ordinarily does not. Public figures have reduced expectations of privacy concerning public functions, but they do not lose all privacy rights.

16. Balancing factors in publication cases

Courts frequently consider the following factors.

Contribution to a debate of general interest

The stronger the public contribution, the stronger the expression claim.

Status of the person

Relevant distinctions include:

• elected official;
• senior public servant;
• business leader;
• celebrity;
• ordinary private person;
• child;
• crime victim.

Subject matter

Information about public functions receives stronger protection than unrelated intimate information.

Prior conduct

A person who voluntarily publicised an issue may have a reduced expectation of privacy regarding that issue, but prior publicity does not eliminate data-protection rights.

Content, form and consequences

Courts examine:

• accuracy;
• tone;
• headlines;
• photographs;
• searchability;
• permanence;
• audience size;
• risk of harassment.

Method of obtaining information

Relevant questions include whether information was obtained through:

• public records;
• confidential sources;
• deception;
• trespass;
• hacking;
• harassment;
• covert recording.

Unlawful acquisition does not automatically determine publication rights, but it is an important factor.

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17. Criminal-conviction databases

Criminal-record publication creates a particularly difficult Article 85 problem because Article 10 gives criminal-conviction information special protection.

A current report on a major criminal trial may have obvious journalistic value.

A permanent name-searchable database of old convictions creates different concerns:

• rehabilitation;
• employment barriers;
• social exclusion;
• indefinite exposure;
• incomplete context;
• later acquittal or appeal;
• commercial exploitation.

In Legal Newsdesk Sweden, the CJEU held that merely making criminal-conviction decisions available online for payment, without processing or editing that reflects an editorial policy, does not in principle amount to journalistic processing.

Illustration

A newspaper reports on a judgment that establishes an important principle of criminal law. It explains:

• facts;
• reasoning;
• social context;
• appeal status. This is likely journalism. A site copies thousands of judgments, permits anyone to search by name and charges for access, without:
• editorial selection;
• contextual reporting;
• factual updating;
• public-interest assessment. Calling the site “legal news” does not by itself establish journalistic purpose.

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18. News archives and the passage of time

Recital 153 expressly refers to news archives and press libraries. Archives contribute to:

• historical research;
• public memory;
• accountability;
• understanding past events.

But time can alter the balance.

Illustration

An accurate 20-year-old article reports a minor offence committed by a private individual. Relevant questions include:

• Was the conviction spent?
• Is the person now a public figure?
• Does the article remain accurate?
• Is it prominently indexed by search engines?
• Would de-indexing protect the person without altering the archive?
• Is continued name-based accessibility necessary? Possible solutions include:
• updating the article;
• adding the acquittal or rehabilitation;
• reducing search prominence;
• de-indexing from external search results;
• limiting name-based database queries;
• preserving the historical archive itself. Article 85 does not require an all-or-nothing choice between deleting history and exposing a person forever.

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19. Academic expression

Academic expression may involve personal data in:

• biographies;
• history;
• political science;
• sociology;
• criminology;
• legal research;
• oral histories;
• case studies;
• archival scholarship.

Article 85 protects academic expression, which is distinct from the separate research provisions in Article 89.

Illustration

A historian writes about decision-making by named officials during a public emergency. Naming the officials may be necessary to explain institutional responsibility. Compare a researcher publishing identifiable interview transcripts containing intimate family details where pseudonyms would serve the academic purpose equally well. The necessity test asks whether identifiable disclosure contributes meaningfully to the academic expression. Academic freedom does not eliminate:

• research ethics;
• accuracy;
• confidentiality promises;
• risk assessment;
• proportionate safeguards.

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20. Artistic expression

Art may process personal data through:

• photography;
• film;
• theatre;
• documentary;
• installation;
• digital art;
• collage;
• performance;
• portraiture.

Artistic value cannot always be judged by conventional factual reporting standards. Art may use:

• symbolism;
• satire;
• fictionalisation;
• exaggeration;
• discomfort.

Illustration

A photographer documents life in a public square and exhibits identifiable images. The artistic purpose may support publication without individual consent, subject to national law and balancing. But secretly photographing a person in a medical-treatment room presents a far stronger privacy claim. Commercial sale does not destroy artistic purpose. Artists must be able to earn income. But business records remain separate.

Illustration

The photograph in an exhibition may be artistic processing. The gallery’s database containing:

• buyers’ addresses;
• payment cards;
• purchase history is ordinary commercial processing.

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21. Literary expression

Literary expression includes:

• novels;
• memoirs;
• biographies;
• essays;
• poetry;
• satire;
• dramatic writing.

A work may combine fact and fiction.

Illustration

A memoir describes the author’s childhood and necessarily includes family members. The author’s expressive freedom is strong because telling one’s own life usually involves other people. But the author should still consider:

• whether intimate allegations are necessary;
• whether individuals can be anonymised;
• factual accuracy;
• vulnerability;
• severity of consequences;
• public interest. Literary expression is not a licence to publish unlawfully obtained financial or medical files merely to make a story more sensational.

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22. Whistleblowing and source protection

Whistleblowing may support journalism, but the two concepts are not identical.

A whistleblower may provide information to:

• a journalist;
• a regulator;
• law enforcement;
• an internal reporting channel;
• the public.

Journalists processing whistleblower information may need Article 85 protection to preserve source confidentiality.

[!example] Illustration A source provides evidence that a pharmaceutical company concealed dangerous trial results. If Article 14 required the journalist immediately to inform every executive named in the documents, the source could be discovered and records destroyed. A necessary derogation may delay or exclude that notice. But publishing every employee’s private contact information would not necessarily be justified by source protection.

23. Accuracy and correction

Freedom of expression protects opinions strongly, but factual allegations require an appropriate basis.

Data protection’s accuracy principle can support responsible journalism rather than oppose it.

Illustration

A report says that a person was convicted. The conviction was overturned before publication. Publishing the original conviction without mentioning the appeal may create a materially misleading impression. A proportionate outcome may require:

• correction;
• contextual update;
• clarification;
• linked follow-up. Rectification should not be used to compel a newspaper to adopt the subject’s preferred opinion. The law must distinguish:
• false factual data;
• disputed interpretation;
• value judgment;
• protected opinion.

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24. Artificial intelligence and automated publishing

Article 85 questions increasingly arise where publishers use AI to:

• generate summaries;
• identify people;
• translate articles;
• recommend stories;
• create searchable archives;
• draft profiles.

The underlying purpose does not automatically make every technical operation journalistic.

Illustration

A newsroom uses AI to summarise court judgments for edited news reports. That processing may form part of its journalistic workflow. The same publisher uses reader behaviour to create advertising profiles. That operation serves commercial advertising rather than journalistic expression and should be assessed separately. Automated generation also increases risks of:

• factual hallucination;
• mistaken identity;
• outdated convictions;
• misleading inference;
• mass replication. Journalistic freedom remains protected, but verification becomes especially important where automated systems generate factual claims about identifiable individuals.

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25. Paragraph 3: Notification to the Commission

Member States must notify the Commission of:

• national laws adopted under Article 85(2);
• later amendments affecting those laws.

The Commission publishes Member State notifications, including Article 85(3) materials, in a central GDPR notification collection.

25.1 Purpose of notification

Notification helps the Commission:

• monitor national implementation;
• compare exemptions;
• detect excessively broad derogations;
• assess whether judicial remedies are preserved;
• identify fragmentation;
• consider enforcement action.

25.2 Notification is not approval

A notified law is not automatically valid under EU law.

The national law may still be challenged if it:

• exceeds Article 85(2);
• removes Chapter VIII remedies;
• creates blanket exemptions;
• fails the necessity test;
• discriminates;
• violates the Charter.

The 2026 Legal Newsdesk Sweden case demonstrates that national constitutional media rules remain open to scrutiny under Article 85 and the GDPR.

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26. Corrections and qualifications to the supplied commentary

Several propositions in the supplied commentary require refinement.

26.1 Article 85(1) cannot independently justify unlimited derogations

The CJEU has now confirmed that paragraph 1 must be read with paragraph 2. Member States cannot rely on broad freedom-of-information language to exempt processing for purposes outside the listed expressive categories.

26.2 Journalistic purpose is broad but not limitless

Public dissemination alone is insufficient. Editorial selection, verification, purpose and communicative method are relevant.

26.3 Professional status is neither necessary nor sufficient

A citizen may engage in journalism. A newspaper may engage in non-journalistic advertising, HR and subscriber processing.

26.4 Public records are still personal data

Information does not lose GDPR protection merely because it comes from:

• courts;
• registries;
• council meetings;
• public hearings.

The accessibility and republishing of public records remain forms of processing.

26.5 Commercial purpose does not automatically defeat journalism

Professional journalism, art and literature commonly generate revenue. The real question is whether public communication and editorial expression are genuine purposes rather than labels for data resale.

26.6 Blanket GDPR exemptions are suspect

Derogations must be targeted and necessary. Complete removal of all GDPR protection for certified publications is not justified merely by a national media label.

26.7 Chapter VIII remedies cannot be removed through Article 85

The list in paragraph 2 excludes Chapter VIII. Data subjects cannot be confined solely to defamation law.

26.8 Journalism includes preparatory work

Research, source material, editing and unused information may fall within journalistic purpose where genuinely connected to public communication.

26.9 Ethical standards are relevant but should not create a closed profession

The 2026 judgment highlights editorial policy, verification and ethical standards. These features should help distinguish journalism from raw data distribution without excluding legitimate independent or citizen journalism.

26.10 Academic, artistic and literary expression require separate sensitivity

Journalistic criteria may provide useful guidance, but artistic fiction, satire and academic inquiry cannot always be assessed through ordinary newsroom standards.

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Conclusion

Article 85 is not an exemption for “the media.” It is a constitutional balancing mechanism. It requires Member States to create laws that preserve:

• the right to personal-data protection;
• private life;
• freedom to hold and express opinions;
• freedom to receive and impart information;
• media pluralism;
• academic freedom;
• artistic and literary expression. For processing genuinely carried out for journalistic, academic, artistic or literary purposes, Member States must provide exemptions or derogations from specified GDPR chapters where necessary. But those derogations must be:
• purpose-specific;
• proportionate;
• no broader than necessary;
• consistent with the Charter;
• capable of preserving the essence of data protection. The main practical questions are:

1. What exact processing operation is involved?
2. Is its genuine purpose journalistic, academic, artistic or literary expression?
3. Does it seek to communicate information, opinions or ideas?
4. Is there genuine editorial, creative or scholarly treatment?
5. What public or expressive value does the processing serve?
6. What personal-data harm may result?
7. Which GDPR obligation would obstruct the expression?
8. Is a full exemption necessary, or would a narrower modification be sufficient?
9. Does the person retain effective GDPR remedies?

10. Which Member State’s Article 85 law applies?

The July 2026 Legal Newsdesk Sweden judgment provides a particularly important modern boundary. It confirms that:

• freedom of information does not automatically remove processing from the GDPR;
• a publication certificate cannot justify complete exclusion of GDPR remedies;
• raw commercial distribution of criminal judgments is not automatically journalism;
• genuine journalism involves a public-information purpose, editorial treatment or policy, factual verification and applicable ethical standards.

The best short summary is:

Article 85 protects the ability to investigate, create, write, report and inform without being paralysed by data-protection rules. But it does not convert every publisher, database, social-media account or commercial information service into a GDPR-free zone. The exemption follows the genuine expressive purpose and only extends as far as necessary to protect that expression.