Privacy rights and ‘citizen journalists’
Recent media coverage of the treatment meted out to politicians and journalists under the guise of political protest has highlighted the use of mobile phones to record video footage, and the posting of such footage to the internet.
In that context, the publication of the Advocate General Sharptson’s opinion in the case of Buivids (C-345/17) seems particularly timely. Though not a binding decision, the AG’s opinion is frequently followed by the Court when they determine the matter.
Posting video to YouTube
Mr Buivids had recorded a video of his time in a Latvian police station, where he had attended to provide a statement in administrative proceedings brought against him. He later published the video on YouTube. He took no steps to mitigate possible infringement of the privacy rights of others by blurring or obscuring their faces or disguising their voices before he published the video on YouTube.
Whilst officers were not easily identifiable, the AG was satisfied that the video constituted the personal data of those officers. She rejected arguments that civil servants performing their official duties fall out with the scope of the right to privacy with respect to the processing of their personal data.
The AG was also satisfied that the making of the recording and its posting to the internet constituted processing of the officers’ personal data which fell outside of the domestic purposes exemption in the data processing directive.
On that basis, the AG determined that Mr Buivids was a data controller, and that there was a prima facie infringement of the officers’ rights. She was then required to consider whether the processing could benefit from the more permissive regime which applies to journalistic processing.
The journalistic purposes exception
In doing so, she noted the role of ‘citizen journalists’, rejecting views advanced by the Czech Republic and Portugal that ‘journalism always necessarily connotes a degree of formalism and professional procedure or control’. However, she stressed that did not mean that ‘any disclosure of information relating to an identifiable person made by an individual publishing material on the internet qualifies as journalism and thus falls within the exception provided for by Article 9 of Directive 95/46′. Importantly, she stressed that to benefit from the journalism exception, the processing of data must be solely for journalistic purposes.
Assuming that the Court follows the approach adopted by AG Sharpston, it will be for the national Court to determine as a matter of fact whether the processing in this case was solely for journalistic purposes, such as to benefit from the exception provided. The AG went on to identifying a range of factors which were relevant that issue.
Exceptions must be narrowly construed
The AG also stressed that, even if processing is solely for journalistic purposes, exemptions from the requirements of the directive must apply only in so far as is strictly necessary and must be construed narrow. Thus, although the term “journalistic purposes” should be interpreted broadly, the mere fact that the journalistic purposes test is met does not automatically mean that the particular processing will benefit from exemptions.
Whilst we must wait for the Court’s determination in this case, the AG’s opinion that Mr Buivids was a data controller in respect of the posting to the internet of the video of third parties seems uncontroversial.
Indeed, the Irish Data Protection Commissioner has recently published guidance in relation to the use of dashcams which clearly identifies users of such devices as data controllers and includes advice about placing clearly visible signage indicating that filming is taking place.
The status of Data Controller brings with it a wide range of compliance obligations under the data protection regime. Although the Buivids opinion relates to the precursor to the General Data Protection Regulation (GDPR), it will be highly relevant to the application of the equivalent provisions under GDPR.
Implications in healthcare
The principles which are considered in this case are also relevant to the privacy rights of healthcare professionals in the context of video or audio recording of consultations.
This is an issue which we addressed in a recent briefing. Whilst patients may readily benefit from the domestic purposes exemption when recording consultations for their own use, it would be a mistake for them to believe that they had carte blanche to publish such videos or recordings on the internet.
The facts giving rise to this case have echoes of a recent Medical Practitioners Tribunal case where a doctor was suspended having published a video of CQC inspectors during their inspection of his practice. Registered professionals must always bear in mind that professional code of conduct is highly relevant to an assessment of such conduct, even if there is no breach of data protection rules.
The ease with which video and audio recordings can be made and published is matched by the ease with which those activities may fall foul of various legal and regulatory requirements.
 Directive 95/46, the precursor to the GDPR
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.