Data processing for journalistic purposes: judgment of the CJEU

By Marta zaballos y Alejandro Negro.

The CJEU has delivered its judgment in Case C-345/17 (Buivids) on the limitations in relation to data protection regulations when images of persons recorded by a user are placed on an internet platform and, in particular, whether that may be considered processing of personal data for journalistic purposes. The facts that gave rise to the main proceedings are as follows: Mr. Buivids recorded on video his own statement in a station of the Latvian national police. Mr. Buivids published the recorded video, showing police officers going about their duties, on www.youtube.com without the officers’ consent. The National Data Protection Agency found that Mr. Buivids had infringed the Latvian personal data protection legislation by not informing the police officers of the intended purpose of the processing and requested Mr. Buivids to remove the video from the platform. After Mr. Buivids’ actions were dismissed in the first and second instance, he filed an appeal before the Latvian Supreme Court claiming that the video showed police officers, who fall outside the scope of data protection legislation. The questions referred by the Latvian Supreme Court to the CJEU seek to clarify two issues: (i) first, whether the recording of police officers while they carry their duties and the subsequent publication of the video on YouTube come within the scope of data protection regulations; and (ii) second, whether this can be considered processing of personal data for journalistic purposes under Directive 95/46 (then in force). In answer to the first question, the CJEU recalls the case law to state that the image of a person recorded by a camera and its publication on a website constitute a processing of personal data (paragraphs 31 and 35 of the judgment). Also, since Mr. Buivids published the video without restricting access, the processing cannot be considered within the context of purely personal or household activities. The fact that they are public officials does not preclude the application of data protection regulations. The relevant question is therefore whether the data processing carried out by Mr. Buivids constitutes a journalistic activity within the meaning of article 9 of Directive 95/46. In this respect, the CJEU confirms its previous case law according to which the term journalism is not limited to professional media but also includes activities which have as their purpose the “the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them” (paragraph 53). A recording like the one at issue—not made by a professional journalist and posted on a content sharing platform—can constitute a journalistic activity. According to the CJEU, it is for the referring court to determine whether its sole purpose was the disclosure to the public of information, opinions or ideas (paragraph 59). To carry out this analysis, the CJEU provide certain criteria: contribution to a debate of public interest; the subject of the new report; the prior conduct of the person concerned; the content; the form and consequences of the publication; the manner and circumstances in which the information was obtained and its veracity; and the measures adopted to mitigate the extent of the interference with the right to privacy. The ruling is particularly relevant because it clarifies the interpretation of the exception “for journalistic purposes,” which must cover non-professional journalists such as bloggers or users. Article 85 GDPR, which mirrors article 9 of the Directive, refers to “journalistic purposes.” Unlike the Directive, GDPR does not include the term “solely”—which is however mentioned in recital 153. On the other hand, the GDPR leaves the Member States a certain margin to establish exceptions and limitations based on the freedom of expression and information. Actions like the one at issue are increasingly common in a changing media environment. Since not all Member States consider the activities of non-professional journalists as journalism, new interpretations will be necessary. The new LOPD contains no exception for the processing of data for journalistic purposes, so the issue will be subject to interpretation by the CJEU and the national courts.