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Video recordings and the journalistic exemption

Published on 08 April 2019

Does making a video recording on a digital camera constitute the processing of personal data? Can individuals benefit from the “journalistic exemption”?

The background

Mr Buivids made a video recording of police officers going about their duties in a Latvian police station, and then uploaded the footage to Youtube.  The Latvian Supreme Court referred the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling.  The questions for the CJEU were whether the recording and publishing amounted to processing personal data under the Data Protection Directive (95/46/EC).  And, if so, does the journalistic exemption apply, even though Mr Buivids was not a professional journalist?  Note that, being pre-GDPR, the issues were considered under the Data Protection Directive (95/46/EC).

The decision

The CJEU held that the recording amounted to processing personal data.  The recording showed an identified or identifiable individual and so was personal data.  The act of storing the video on a continuous recording device (ie on the hard drive) constituted automatic processing of the personal data.  Equally, the operation of loading personal data on a web page also constituted processing (of which at least part was automatic).

On the second question, despite Mr Buivids not being a professional journalist, the CJEU held that the journalistic exemption must apply not only to media undertakings but also to every person engaged in journalism.  And “journalistic activities” are those which have as their purpose the disclosure of public information, opinions or ideas, irrespective of the means used to transmit them.  It is now for the Latvian court to decide whether it appears from the video in question that the “sole purpose” of the recording and its publication was the disclosure to the public of information, opinions or ideas.

Why is this important?

Clarifying the scope of the journalist exemption, this decision shows the developing jurisprudence in support of citizens journalism within the journalistic exemption.  Although the applicable Directive here (the Data Protection Directive) predated the implementation of the GDPR, there are similar provisions which still apply so the reasoning is likely to be followed.

Any practical tips

It’s clear that video recording does constitute the processing of personal data.  It’s also clear that “citizen journalism” may be considered processing for journalistic purposes.  Note that, in the Data Protection Act 2018, the UK dropped the condition for the application of the exemption that journalism must be the “sole” purpose of the processing.  This all suggests that “citizen journalism” is a concept which will have a strong footing should the debate arise within the English courts.