The citizen journalist is a data controller

The European Court of Justice’s (ECJ’s) Advocate General (AG) grasped that prism recently and provided an opinion on whether an individual posting on YouTube a video he had recorded on his phone while in a police station complied with data protection law. Though that opinion is not binding, the ECJ often follows the AG’s opinions when considering the issues in question.

The opinion was provided in the context of EU Directive 95/46, which is now replaced by the GDPR, but is nevertheless relevant as the particular law under consideration remains largely unchanged. It is also of interest to active members of the Twitterati and denizens of the blogosphere who sedulously engage in “citizen journalism”.

Background

Mr Buivids recorded a video of police officers going about their duties in a Latvian police station, which he had attended in order to provide a statement in administrative proceedings which had been initiated against him. He subsequently published the video on YouTube without pixilating or otherwise obscuring the faces of the police officers or disguising their voices, and without their knowledge.

The questions addressed by the AG

1. Did the processing (i.e. filming and subsequent posting) fall within the scope of EU Directive 95/46?

Yes. The police officers were individual data subjects capable of being identified (though not readily) and information relating to them was published. This amounted to processing personal data by automatic means. There was therefore a prima facie infringement of their right to privacy.

The AG then went on to consider whether any exemptions applied. The general rule is that exemptions from data protection law are construed narrowly. The AG rejected the argument that the processing fell within the exemptions for public/state security or state activities in relation to the criminal law.

Neither did it fall within the exemption for processing in the context of purely personal or household activity, which relates only to activities carried out in an individual’s private or family life. Publishing the video made it available to an unrestricted number of people and took it entirely outside of the private sphere.

2. Did the processing fall within the exemption for personal data processed for journalistic purposes?

The exemption for journalism seeks to reconcile privacy with freedom of expression, which includes the right to receive and impart information and ideas. Journalism plays a significant role in fulfilling that right in a democracy.

The term “journalistic purposes” in this context has been interpreted broadly by the courts as follows:

• It involves the disclosure to the public of information, opinions or ideas;

• It is not confined to media organisations;

• It need not be profit-making;

• It is not confined to traditional means and therefore can include postings on an internet site.

Applying those criteria, the AG was clear in her conclusion that anyone engaged in “citizens’ journalism by gathering and disseminating information in order to disclose to the public information, opinions or ideas may be considered to be processing personal data for journalistic purposes” within the meaning of the EU Directive 95/46.

The exemption however only applies to the processing of personal data carried out solely for journalistic purposes, where it is in the public interest (i.e. it relates to a matter which affects the public to such an extent that it may legitimately take an interest in it or which concern it to a significant degree, especially if it affects the well-being of citizens or the life of the community). If Mr Buivids’ sole purpose was to expose police malpractice, which the AG’s opinion identified as “a classic objective of good, public-spirited journalism”, then he may well fall within the exemption. However, the presence of other purposes such as simple voyeurism or a belief that one has the right to publish videos about the police because they are public officials would breach the sole-purpose condition, taking it outside of the exemption for journalism.

Mr Buivids did not inform anyone, least of all the police, of the specific purpose of his videoing, the video showed no unlawful conduct on the part of the police officers, and he made no effort to mitigate the extent of the infringement of the police officers’ privacy rights by disguising their identities. The AG concluded therefore that in this particular case, the right to freedom of information/expression should not prevail over the right to privacy.

Conclusions

The lessons of this case are as summed up by the AG herself as follows:

Non-professional journalists posting videos of individuals on the internet can avail of the exemption for journalism under data protection legislation if the posting is solely for journalistic purposes (and includes a public-interest element);

It is for the national courts to examine and reconcile privacy and freedom of expression taking into account:

• Whether the published material contributes to a debate of public interest
• The degree of notoriety of the persons affected
• The subject of the report
• The prior conduct of the person concerned
• The content, form and consequences of the publication; and
• The circumstances in which the information was obtained.

The real lesson is that simply because you can capture on your phone the world unfolding in front of you, you do not have an absolute, unfettered right to publish the footage if it contains images of potentially identifiable individuals. Think before you click.