A recent ruling of the European Court of Justice stated that a Swedish company operated, in return for payment, a database which enabled searches to be carried out on persons who have been the subject of criminal proceedings, and to consult the conviction decisions concerning them. A person, who was convicted in 2011, requested the erasure of his personal data from that database. That erasure, however, was only carried out subsequently, on the basis of the internal data storage policy of that company. That person then brought an action before the Swedish courts seeking damages on the basis of the General Data Protection Regulation (GDPR).

In its defence, the company relied on the constitutional protection enjoyed by that database in respect of the freedom of expression. Under Swedish law, such protection precludes the application of the GDPR and leaves to the person concerned only the possibility of bringing proceedings for defamation, of either a criminal or a civil nature, for the purposes of asserting his or her rights.

Harbouring doubts as to the compatibility of that legislation with the GDPR, the Swedish court referred questions to the Court of Justice.

In its judgment, the Court observes that the GDPR requires Member States by law to reconcile the right to the protection of personal data with the freedom of expression and information, including for journalistic purposes and the purposes of academic, artistic or literary expression. They may provide for exemptions and derogations from certain provisions of the GDPR, if that is necessary to allow that reconciliation.

Nevertheless, the Member States may not preclude the application of the GDPR in respect of the processing of data for purposes other than those referred to above.

Nor can they deprive the person concerned of remedies guaranteed by the GDPR, by leaving that person only the possibility of bringing criminal or civil proceedings for defamation. That person must be able to exercise, so far as concerns the processing of his or her personal data, the remedies which are granted to him or her under that regulation directly.

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