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Case law: Data protection exemption for ‘journalistic activities’ is wider than just professional journalists’ activities

Individuals who secretly film and post videos on YouTube and similar sites may be able to rely on an exemption for ‘journalistic activities’ to justify what would otherwise be a breach of data protection rules. This follows a new, wider definition of the exemption put forward in a recent Court of Justice of the European Union ruling.

June 2019

This update was published in Legal Alert - June 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A man giving a statement at a Latvian police station believed the police were acting unlawfully so he started filming them in secret on his mobile, and uploaded the video to YouTube.

Individual police officers could be identified on the video. The National Data Protection Agency of Latvia ruled that publishing the video on YouTube without telling the officers in advance that he intended to ‘process their personal data’ in that way breached the EU data protection laws at the time (before the General Data Protection Regulations came into force). He was asked to take the video down.

The man asked the Latvian courts to declare the Agency’s decision unlawful and claimed compensation. His application said that he had published the video to bring society’s attention to what he considered unlawful conduct by the police.

The Latvian courts said he had failed to state his objective in publishing the video so it was not possible to say which took precedence – his right to freedom of expression or the police officers’ right to privacy. Nor did the video show ‘current events relevant to society or dishonest conduct on the part of the police officers’, so the video had not been filmed and published as in the course of ‘journalistic activity’ – which was important because such activities are exempt from the relevant data protection laws.

The Latvian Supreme Court asked the Court of Justice of the European Union (CJEU) for guidance on two issues:

  • whether filming police officers doing their job and publishing the footage was a breach of the EU rules;
  • whether the exemption where data is being processed ‘solely for journalistic purposes’ applied.

The CJEU ruled that filming and publishing the video was processing of personal data so it was a breach of the rules. However, it also ruled that the exemption should be interpreted widely, saying that “journalistic activities are those which have as their purpose the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them”, ie they are not confined to professional journalists, or traditional media.

The CJEU passed the matter back to the Latvian Supreme Court to rule on the matter in light of its ruling.

Operative date

  • Now

Recommendation

  • Individuals who secretly film and post videos on YouTube and similar sites may be able to rely on an exemption for ‘journalistic activities’ to justify what would otherwise be a breach of data protection rules brought against, them, given the new, wider definition of the exemption.

Case ref: Sergejs Buivids Case C-345/17

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