Wednesday, August 22, 2007

YouTube, Private Exemptions and Lindqvist all in one!

Out-Law has recently posted an interesting case, which has YouTube, Private exemptions (under s 36 of the Data Protection Act 1998) and Lindqvist issues all wrapped up in one case:

"The woman at the centre of a battle with social services over the future of her unborn baby will not be able to claim an exemption from the UK's Data Protection Act, a legal expert has warned.
Vanessa Brookes of Calderdale, Halifax was recently told by a social worker that the local authority would apply for an interim court order to take her baby from her and place it with foster parents on birth. Worried about the outcome of the meeting, Brookes tape recorded it. The recording was published on video sharing website YouTube. Local authority Calderdale Council has objected to that publication and has said that it will take legal action to have it taken down because, it says, it breaches the Data Protection Act (DPA). "The Council believes that the YouTube recording breaches the Data Protection Act, since the recording was made without the knowledge or consent of our member of staff," said a statement from Calderdale Council. "We have concerns that, because the case involves court proceedings, it could prejudice child protection and safeguarding outcomes." Dr Chris Pounder, a data protection specialist at Pinsent Masons, the law firm behind OUT-LAW.COM, said that the DPA has an exemption in section 36 that applies when recordings like this are used for domestic purposes. This exemption excludes all of the data protection principles and rights, and applies, for example, when parents take their video cameras to record their children's performance in a school play. But, he said, as soon as the recording was published online it is ineligible for the 'domestic purposes' exemption because of the European Court of Justice (ECJ) ruling in a case involving Mrs Bodil Lindqvist in Sweden.
Lindqvist was a church activist who published personal details of parishioners on a website as part of a computing project. She said that publishing details should not breach the EU's Data Protection Directive, but the ECJ disagreed. The ECJ stated: "That [domestic purpose] exception must therefore be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people." The Lindqvist judgment means that the section 36 exemption does not apply in the YouTube posting and the personal data is fully subject to the DPA and the enforcement powers of the Information Commissioner, said Pounder. He added "The exemption is also lost, even if I put up online information about myself. However, in this case, there are very few data protection obligations as there is my consent. The problems arise when I put someone else's personal data on these web-sites in the absence of consent" he said."

I have already written an article some time back with a colleague looking at publishing personal information on websites for private purposes and social networking in the context of data protection, so this case appears to be timely. The article is due to be published in the forthcoming John Marshall Journal of Computer and Information Law, but the working paper can be found here. Again, since the Lindqvist case, it is unlikely that publication of personal information on the internet would fall within the exemptions for private purposes (though, see the different EU Member States' approach, which I describe in the article). Comments welcome!

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