Boris Johnson and GDPR

Posted on 24 June 2019

Might there have been a breach of data protection law in the recording, apparently by neighbours, of incidents at Boris Johnson’s home, and the passing of the recording to the media and the police? Almost certainly not.

This post is restricted to legal analysis only, and does not touch on the ethical considerations.

In general, processing of personal data done for one’s own domestic purposes avoids the need for compliance with data protection law. Article 2(2)(c) of the General Data Protection Regulation (GDPR) – which provides the overarching statutory framework for most processing of personal data – says that the GDPR itself “does not apply to the processing of personal data…by a natural person in the course of a purely personal or household activity”. This is understandable: were there not such a carve-out, one’s children might, say, try to sue one for unlawful processing of their pocket-money data.

However, that word “purely” is key in Article 2. Processing which is not in the course of a “purely” domestic activity, such as, say, passing a recording of an altercation involving one’s neighbours to the media and the police, will be within GDPR’s scope. So if GDPR is likely to apply, what are the considerations?

Firstly, passing information to the police about an altercation involving one’s neighbours is straightforward: GDPR permits processing which is necessary for the performance of a task carried out in the public interest (Article 6(1)(e)) and where the processing is necessary for the purposes of someone’s legitimate interests (provided that such interests are not overridden by the rights of the data subject) (Article 6(1)(f)).

But what of passing such information to the media? Well, here, the very broad exemption for the purposes of journalism will likely apply (even though the neighbours who are reported to have passed the information to the media are not, one assumes, journalists as such). GDPR requires member states to reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes (see Article 85), and this obligation is given effect in UK law by paragraph 26 of Schedule 2 to the Data Protection Act 2018. This states that the GDPR provisions (for the most part) do not apply to the processing of personal data where it;

is being carried out with a view to the publication by a person of journalistic, academic, artistic or literary material, and…the controller reasonably believes that the publication of the material would be in the public interest [and] the controller reasonably believes that the application of [the GDPR provisions] would be incompatible with the… purposes [of journalism].

Here, the controller is not just going to be the journalist or media outlet to whom the information was passed, but it is also likely to be the non-journalist person who actually passes the information (assuming that the latter passes it with a view to its publication and does so under a reasonable belief that such publication would be in the public interest).

The equivalent exemption in the prior law (the Data Protection Act 1998) was similar, but, notably, applied to processing which was only carried for the purposes of journalism (or its statutory bedfellows – literature and art). The absence of the word “only” in the 2018 Act arguably greatly extends the exemption, or at least removes ambiguity - there was never any notable example of action being taken under the prior law against the media for processing which was alleged to be unlawful and which was for more than one purposes (i.e. not solely for the purposes of journalism).

It seems almost certain, then, that Johnson’s non-journalist neighbours could avail themselves of the “journalism” exemption in data protection law. As could anyone who processes personal data with a view to its publication and who reasonably believes such publication is in the public interest: we should prepare to see this defence aired frequently over the coming years. Whether the exemption is too broad is another question.

Because of the breadth of the journalism exemption in data protection law, actions are sometimes more likely to be brought in the tort of misuse of private information (see, for example, Cliff Richard v BBC, and Ali v Channel 5). Whether such a claim might be available in this case is also another question, and not one for this particular article.

 

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