Filming public officials

Does filming a public official performing their job constitute journalism? Matt Collins analyses an Advocate-General’s opinion on the issue.

Familiar to local authorities will be a complaint from its officers that they have been unwillingly photographed or filmed by members of the public, typically those against whom they are taking some regulatory action e.g. licensing officers filmed by an errant taxi driver, civil enforcement officers photographed by an unhappy motorist, etc..

The balance between the freedom of expression of the citizen and the right to privacy of the officer has not always been easily understood.

The issue recently came to a head in Buivids v Datu Valsts Inspekcija in Latvia in circumstances where the Latvian police were in the process of conducting administrative proceedings against an individual, Mr Buivids, which (we are told) subsequently resulted in the imposition of a fine.

Mr Buivids video recorded the inside of the police station including himself, the police officers and the conversations between them while the procedure was carried out. He did this openly but without express consent and without explaining the purpose of his recording. Mr Buivids later uploaded the video to YouTube.

The State Data Inspectorate investigated and found that Mr Buivids had failed to comply with national data protection laws, in particular he failed to comply with a requirement to specify explicitly the purpose of his ‘processing of personal data’ (i.e. his recording and uploading to the internet of video showing other people). Mr Buivids was instructed to remove the video from YouTube.

Mr Buivids challenged this decision in the national courts where he argued in defence of his actions that he wished to bring to society’s attention something which (in his opinion) constituted illegal conduct on the part of the police. The national courts dismissed Mr Buivids’s challenge finding no infraction of his right to freedom of expression nor that the video informed society about current news or revealed illegal conduct by the police.

Mr Buivids appealed to the Supreme Court of Latvia which has made a reference to the Court of Justice of the European Union on the interpretation of European data protection law. For these purposes, the relevant law is the data protection directive (now superseded by the GDPR).

The Supreme Court has asked –

1. Do the actions at issue in the present case fall within the scope of the directive?
2. Do these actions fall within the scope of the protections required to be guaranteed by Article 9 of the directive for ‘processing of personal data for journalistic purposes’?

The judgment of the court is awaited, but the Advocate General (Eleanor Sharpston QC) has issued her opinion.

The Advocate General answers the first question with relative ease – that Mr Buivids’s actions do fall within the scope of the directive. The Advocate General’s opinion is interesting because of the way in which the second question is answered.

Article 9 provides that –

Member States shall provide for exemptions or derogations from the provisions of [Chapter III], Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

By way of context, in the UK the required exemption appeared in the Data Protection Act 1998, section 32 (journalism, literature and art).

In her opinion, the Advocate General concludes that where an individual who is not a professional journalist makes video recordings which he publishes on the internet, those video recordings are capable of falling within the Article 9 protection for ‘journalistic purposes’ – but will not always do so.

The Court already determined in Satakunnan that ‘journalistic purposes’ are not limited to traditional media undertakings, and that neither the presence of profit nor the mode of communication are decisive factors in determining a purpose as ‘journalistic’.

The Advocate General provides further guidance for national courts.

On the first limb of Article 9, that processing must be carried out solely for journalistic purposes, Advocate General Sharpston makes the following additional points (which if answered in the affirmative, indicate that the protections will be engaged):

i) Did the data processed convey substantive material such as to constitute a disclosure of information, opinions or ideas to the public?

ii) Was the data processed solely for journalistic purposes e.g. to expose police misconduct, without other elements being present e.g. a belief in an intrinsic right to film and publish videos of public officials, etc.?

On the second limb, that the exemption must be necessary to balance the rights to privacy and freedom of expression, the Advocate General enumerates six factors to be weighed in the balance:

i) the contribution to a debate of public interest,

ii) the degree of notoriety of the person affected,

iii) the subject of the report,

iv) the prior conduct of the person concerned,

v) the content, form and consequences of the publication, and

vi) the circumstances in which the information was obtained.

The Advocate General noted that the information provided to the Court by the Latvian courts is ‘sketchy’, and she has been careful to avoid drawing conclusions on questions of fact – which is properly a matter for the national courts. Nevertheless, it will be of comfort to public officials that she tentatively found:

On the basis of the limited information available to this Court, it seems to me likely that the criteria earlier identified for assessing whether, in a particular case, the right to freedom of information should prevail over the right to privacy and to protection of personal data were not satisfied. I emphasise, however, that it is for the national court to complete the process of finding the necessary facts and, on that basis, to make a definitive assessment in the present case.

Although this case relates to the old data protection directive, it will remain a useful reference point because wording similar to Article 9 appears in the GDPR, albeit with ‘solely’ only appearing in the recitals.

In ordinary parlance it is easy to equate ‘journalistic purposes’ with the activities of traditional newspapers and broadcasters; indeed, the UK exemption makes reference to professional editorial guidelines. This opinion is a helpful reminder that the breadth of ‘journalistic purposes’ as a concept in data protection law stretches much further, and can include ‘citizen journalism’.

The direction of travel in data protection law is clear – the recitals to the GDPR now provide that it is “necessary to interpret notions relating to [freedom of expression], such as journalism, broadly”.

There is scope for public officials to draw some consolation. In concluding (even if tentatively) that the exemptions would likely not protect Mr Buivids’s activities, the Advocate General delineated a limit to the ‘journalistic purposes’ exemption and provides a rebuttal to ‘simple voyeurism’ and the recording of public officials for its own sake.

The final judgment of the Court of Justice is awaited.

Matthew Collins is a solicitor at Stratford-on-Avon District Council.