The decision of the Data State Inspectorate to oblige the applicant to delete the video published on the Internet is left unchanged
19 March, 2019
On March 19, the Department of Administrative Cases of the Senate upheld the decision of the Administrative Regional Court, maintaining the obligation imposed by the Data State Inspectorate on the applicant to delete the video published on the internet in which police officers at the police station were recorded. Considering the arguments included in the judgement of the Court of Justice of the European Union, the Senate is of the opinion that there has been no fair balance between the right to freedom of expression and the right to privacy in the applicant's activities.
The Senate points out that legal provisions provide for the harmonization of two fundamental rights, on the one hand, the respect for privacy and, on the other – freedom of expression. The applicant has not explained why he considered it important to inform the public about the actions of police officers. The applicant, in exercising his right to freedom of expression, has not avoided interference in the private life of police officers, as the same objective could be achieved by anonymising the video record so that it was not possible to identify police officers concerned.
Any person can publish information for purposes of journalism to create or promote discussion on issues of public interest. However, a person who is not considered a journalist, when publishing information, must follow the same obligation to provide accurate and reliable information and to act in good faith. Such a person should be able to justify why disclosure of specific information (such as images) is in the public interest.
If images taken at the police station are published by a person other than a journalist and disclosure of these images in the public interest (for journalistic purposes) cannot be detected, in this case the preference has to be given to the right of police officers to the protection of personal data (images).
Previously the Senate suspended proceedings in the present case to refer preliminary questions to the European Court of Justice thus clarifying whether such person’s actions, that are dealt with in the present case, – video-recording of police officers at the police station at the time of carrying out their duties and publishing the recorded material on the internet – correspond to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. As well as the Supreme Court looked forward to find out whether Directive 45/46 could be interpreted in a way that the above-mentioned actions can be considered as processing of personal data for the purposes of journalism within the meaning of Section 9 of the Directive.
There are following circumstances of the case:
The applicant, while at the State Police station premises, filmed the documentation of his explanation-giving regarding the administrative offence. The police officers can be seen and heard in the video record. The applicant published the video material on the website www.youtube.com.
Decision of 30 August 2013 of Data State Inspectorate established that the applicant has violated first paragraph of Section 8 of Personal Data Protection Law, by not providing police officers as data subjects with information on the intended purpose of processing of personal data, as implied in the said provision. The applicant has also provided no information to the State Data Inspectorate on the purpose of recording video material and its publishing on the website, thus not attesting the compliance of the purpose with Personal Data Protection Law. Therefore, the State Data Inspectorate requested the applicant to ensure that video is deleted from www.youtube.com and other websites.
Applicant addressed the court, requesting to declare State Data Inspectorate's decision unlawful and compensate the damage suffered.
Regional Administrative Court rejected the applicant's claim. The applicant submitted cassation appeal, substantiating his action with freedom of expression and pointing out that video material does not affect private life of police officers. (Case No SKA-6/2019; A420502213).
Information prepared by Baiba Kataja, the Press Secretary of the Supreme Court
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