In a rapidly evolving digital landscape, and the increasing availability of information, governments are ramping up their surveillance and privacy laws, especially in countries like China, Russia, and Iran, to monitor and censor access to certain information that is generally deemed sensitive and private. This however poses a threat to the free distribution of information online and the exchange of data which is crucial for certain sectors and begs the question of how much press freedom we truly possess.

According to Statistica, in 2022 China, India, and Pakistan topped the list of the world's most surveilled countries. The data showed that 1.4 million people in China are being monitored while using the internet.

Challenges for Journalists When Considering Press Freedom

However, censorship and surveillance are not the only challenges faced by journalists, privacy laws aimed at protecting personal information may also conflict with the freedom of expression when it comes to press freedom.

South African POPIA Exemptions and Implications

The Protection of Personal Information Act also known as POPIA, came into effect in South Africa on July 1, 2020. POPIA, which aims to regulate the processing of personal information by public and private bodies, established certain principles and requirements for handling personal data. While its primary intention is to protect individuals’ privacy rights, it has had numerous implications on press freedom.

Under POPIA, journalists and media organisations are required to exercise caution in handling personal information in their reporting. The law may limit the extent to which they can publish certain details about individuals without their explicit consent.

This is especially seen in cases where the information is considered sensitive or could harm someone’s privacy. This can sometimes result in conflicts between journalists seeking to report on important matters and the need to respect individuals’ privacy rights.

The act does specify that it does not pertain to the work of journalists and that the media is exempt from the regulations of POPIA. However, this should not stop the media from exercising caution when it comes to the publishing of intricate private details of individuals - which may be highly sensitive.

Information regulator spokesperson, Nomzamo Zondi, confirmed to the South African National Editors Forum (Sanef) that “Section 7 of POPIA stipulates that the Act does not apply to the processing of personal information for journalistic purposes.”

A report issued by Caxton Media delves deeper into how the POPIA Act affects the distribution of personal data. The POPIA Act is aimed at protecting South African individuals from the abuse of personal information.

Impact of the Film and Publications Amendment Act

Another privacy law that affects press freedom in South Africa is the Film and Publications Amendment Act. The Act was introduced to address issues related to child pornography and hate speech. While its primary purpose is to protect vulnerable individuals from harm, the legislation has faced criticism for its potential to be used to stifle free speech and limit press freedom. The Film and Publications Act extends the classification of distributors to encompass all individuals who share content through online platforms. This legislation introduces two distinct distributor classifications: Non-commercial online distributors are those who solely share content intended for private consumption. The FPB confirmed during a media briefing on 4 March 2022, that content classification is not required for non-commercial online distributors.

An individual falls into the non-commercial distributor category if they share content on platforms like social media without deriving any financial gain from it. The concern about this act is that the FPB may take action against content creators who publish anything that falls into a category of prohibited content that is determined by the government.

Data Privacy Within the Communication Business Sector

There truly exists a very delicate balance between press freedom, freedom of expression, and data protection. In the communication business sector companies are especially affected as they use their clients’ personal information to achieve marketing and communication objectives.

The industry is heavily reliant on personal information and data for various purposes. Major communication firms engage in the purchase and exchange of client data. InfoExchange SA is one such firm in South Africa that specializes in collecting and aggregating consumer data from various sources like online transactions, social media interactions, and market research surveys. They sell this data to other companies including marketers, advertisers, and research organisations. These buyers use the data to tailor their marketing campaigns, understand consumer behavior, and make strategic business decisions.

It then becomes imperative for these firms to implement protective measures to ensure the preservation of valuable information. In many cases, the POPIA act is more likely to impact the industry positively than it would negatively. When a company complies with the POPIA regulations, it stands a good chance of protecting itself against any legal penalties should it experience a data breach.

Exploring European Privacy Laws

In Europe, the General Data Protection Regulation (GDPR), one of the most significant privacy laws, impacts individuals and businesses within the EU and beyond. While the GDPR aims to protect the privacy and data rights of individuals, it also has implications for press freedom.

In an essay published by Cambridge University Press, the ability for press freedom and the GDPR to coexist is explored. The essay argues that, although EU state members seem to have taken their data protection obligations under the GDPR seriously, efforts to balance this against the right to freedom of expression have been more uneven. The essay concludes that it is of key importance to ensure that the GDPR’s safeguards for data privacy do not compromise press freedom.

Given that “personal information and human stories are the raw material of journalism”, this begs the question of what the GDPR means for freedom of expression and journalistic activity as it requires the free use of personal information to accumulate fact-based, unbiased, balanced stories. The essay further implores that the GDPR attempts to harmonize data privacy protection across the European Union, however, the landscape for safeguarding the right to freedom of expression is more fractured as the right has been broadly interpreted by the European Court of Human Rights (ECHR), giving them the flexibility in their domestic law in how to reconcile the right to freedom of expression with GDPR obligations. The essay is available for further research here.

OpenSource AI ChatGPT Banned in Italy

As data and press are becoming more and more intertwined with a shift towards citizen journalism and the rise of content creators - the banning of the use of ChatGPT in Italy is an interesting example of how the use of new AI tools for content creation is becoming a privacy concern for the Italian government, but at the same time infringes on the rights of journalists to freely accumulate information to execute their work.

However, tools like ChatGPT are becoming part and parcel of modern journalism. Banning the use of such tools which allow for faster curation and accumulation of information may be seen as an indictment on press freedom as the world progresses into the 4th Industrial Revolution.

The complete ban on using the OpenAI plan came as a result of an investigation by the ‘Garante per la Protezione dei dati personal (Guarantor for the protection of personal data) that cited specific violations.

Some of the violations specified include that OpenAI did not properly inform users that it had collected personal data and that it did not provide a legal reason for collecting personal information to train its algorithm.

The entire country lost access to the technology because the government was concerned about privacy breaches.

Legal Discrepancies on Press Freedom and Data Privacy

Journalism, which in essence requires free access to information, is often at odds with data privacy. Data protection seeks to restrict the processing of personal data and journalism thrives on private information and human stories.

The EU’s privacy law GDPR aims to alleviate that tension, by allowing journalists to process personal data.

However, there is a discrepancy in the usage of the term “journalistic exemption” from the act, which may be considered somewhat misleading. It seems to imply a per se priority of the right to the freedom of expression over personal rights.

In a decision taken by the Austrian Constitutional Court, this was emphasized. The case called the Austrian journalistic exemption an “undifferentiated exclusion” violating the fundamental right to data protection.

In this specific case, the media reported about a house search at a private home. They did not only report the facts accumulated from the search but also disclosed the personal details found on a business card of the affected person. This revealed personal data and was thought to be irrelevant to the case.

The person complained to the Austrian data protection authority – which was rejected for “lack of jurisdiction”, and the regulation in favor of the media was applied.

The person whose information was unduly disclosed had escalated the complaint to the Federal Administrative Court, which in turn had applied to the Constitutional Court where it was then declared that the broad Austrian journalistic exemption was nothing else but unconstitutional.

Overall, press freedom must be balanced with the protection of personal privacy, and responsible journalistic practices should be applied when handling sensitive data.

When exploring the above-mentioned cases and considering the implication that open-ended press freedom and the endless access to information on the internet have on individuals’ right to privacy it can be concluded that finding a balance between the two can be challenging.

Maintaining journalistic integrity should be considered of high importance in terms of processing information – whether it be for marketing purposes, news coverage, or data capturing and distribution to carry out critical services.