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Following a decision of the European Court of Justice (ECJ), Advocate General Sharpston (AG) confirms that the filming of public officials carrying out their duties by members of the public who then publish the video online could fall within the journalistic exemption under data protection rules.
The statement comes after Latvian, Mr Buivids, made a video recording of a statement that he made at a police station. The video showed the police facilities and officers going about their activities. Mr Buivids published the video on YouTube. The Latvian data protection authority investigated the matter and found that Mr Buivids had breached legislation by not informing the officers why he was filming.
The Latvian Supreme Court asked the ECJ to consider whether or not this activity fell within the scope of the Data Protection Directive (95/46/EC) (Directive) (now superseded by the GDPR), and if so, whether it was for “journalistic purposes” and therefore could be subject to an exemption. The AG believes that “citizens journalism” such as vlogging and uploading videos to social media can be caught by the GDPR even though it is not professional journalism.
Those uploading video content online should therefore beware of filming people, even incidentally as was the case for Mr Buivids, without first getting their consent to appear in the video. However, taking the AG’s comments into account, if a vlogger were to be caught by the Directive, they could argue that the journalistic exemption applies. This exemption allows the publication of material which would be in the public interest. The intention of this exemption is to preserve freedom of expression and it is likely that the same would also apply under the current GDPR legislation. However, the use of the exemption is not guaranteed, and the facts of each case will need to be considered by the national courts, in order to ensure that a balance between privacy and freedom of expression is achieved.
Therefore, those intending to upload video or photographic content to the internet should be mindful of a person’s right to privacy where the person has a reasonable expectation of privacy, such as in their own home or garden. Those in the public eye may be seen to have a lower expectation of privacy than ordinary citizens, however privacy laws still apply regardless of a person’s occupation.
Sharing videos online may also raise issues of copyright infringement, particularly if the video includes music. Those responsible for controlling and/or processing personal data must ensure that consent is obtained by the relevant individual(s) or that appropriate steps to protect a person’s identity are taken.
Full details of the case are here: Buivids (Case C-345/17) EU:C:2018:780 (27 September 2018).
For more information you can contact our specialist data protection lawyers here.