During the summer of 2015, European governments hit hard against journalists. In Germany, Netzpolitik was almost charged with high treason. In Turkey, censorship of Twitter was stepped up, while Russia banned (and quickly unbanned) Wikipedia. The French Patriot Act entered into force.
While branches of power 1 and 2 (executive and legislative) have a long history of attacking free speech, branch number 3 (judiciary) has long been Europeans’ best defense. Things are changing, and fast. Judges are taking the wrong view on what information is in the digital age. New rulings threaten to set European journalism back by a decade.
On July 21, 2015, the European Court of Human Rights ruled that making a database of public tax records accessible digitally was illegal because it violated the right to privacy . The judges wrote that publishing an individual’s (already public) data on an online service could not be considered journalism, since no journalistic comment was written alongside it.
This ruling is part of a wider trend of judges limiting what we can do with data online. A few days later, a court of Cologne, Germany, addressed data dumps. In this case, the German state sued a local newspaper that published leaked documents from the ministry of Defense related to the war in Afghanistan. The documents had been published in full so that users could highlight the most interesting lines. The ministry sued on copyright grounds and the judges agreed, arguing that the journalists should have selected some excerpts from the documents to make their point and that publishing the data in its entirety was not necessary .
These two rulings assume that journalism must take the form of a person collecting information then writing an article from it. It was true in the previous century but fails to account for current journalistic practices.
Databases and algorithms grow in importance by the day and journalists keep up by adapting their tools and techniques. They build algorithms to automatically check if the beneficiary of a public tender is friends with the politicians who passed it, for instance . They set up networks of sensors to measure radioactivity levels . They create robots that scrape data from a website to find wrongdoers . Dozens of newsrooms in Europe have set up so-called “datajournalism” teams that curate databases and write computer code to find stories and report the news.
The recent rulings from Strasbourg, Cologne and Luxembourg demote such journalism to the rank of data processing. This deprives datajournalism from the protections enjoyed by journalists in Europe. It would require them to obtain the consent of politicians and businesspeople before they can add their names to a database, for instance . It could  require them to ask an online service for permission before they could scrape their data.
The rulings do not specifically tie the hands of journalists but they pave the way for new claimants to sue some recent datajournalism projects. zNasichDani.sk, a Slovak platform that lets users check on the owners of companies awarded public tenders, was sued on privacy grounds in 2011, for instance . The ruling that let it remain online then could easily be overturned now. The OffshoreLeaks or LuxLeaks databases, which published the names of owners of bank accounts in the British Virgin Islands and documents from contracts passed between large companies and the government of Luxembourg, would also fall foul of the law under the current jurisprudence.
Lawmakers need to urgently change their definition of journalism. Algorithms play a vital role in our lives, from deciding whose friends you can read updates from to finding a dating partner and detecting terrorism suspects from their browsing history. To check that these algorithms do not misbehave, journalists need to code their own. They need to build databases and make them available to the public. They need to disclose as many documents as they deem necessary.
In this century, journalists need more than paper and pen to keep the powerful in check. If Parliaments do not acknowledge this in law, European citizens will lose a watchdog, and European democracy will suffer.
1. The Finnish company on trial created a service whereby users could obtain the taxation data of an individual by sending an SMS. Individual taxation data is already public in Finland, and reception of individual data by SMS is common. You can, for instance, obtain the name of a car’s owner by texting a government-operated service. Read the case Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland on the ECHR’s website.
2. Read the case on the website of the justice ministry of Nordrhein-Westfalen [de]. Note that the newspaper appealed to the German supreme court (read blog post at DerWesten [de]).
3. The case opposed Ryanair to a price comparison service. Read the case Ryanair v. PR Aviation on the CURIA website.
4. As the Grano project aims at doing.
5. As the Safecast project did in the aftermath of Fukushima.
6. As Le Temps and many others did to find professionals using Airbnb to evade taxes.
7. See article 7 of the Directive 95/46/EC on the protection of individuals with regard to the processing of personal data. Currently, article 9 of the same directive provides an exception for journalism.
8. A previous version of this article said that the Luxembourg ruling “would” force journalists to ask permission. It appears to be more complicated than that. Hugo Roy and I debate it here.
9. Read an analysis of the 2011 case.