Opinion of Advocate General Sharpston delivered on 27 September 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0345
• ECLI: ECLI:EU:C:2018:780
• Date: 27 September 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-345/17

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 27 September 2018(1)

Case C‑345/17

Sergejs Buivids

joined parties:

Datu valsts inspekcija

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia))

(Reference for a preliminary ruling — Scope of application of Directive 95/46/EC — Filming and publication on internet sites of a video recording of police officers carrying out their duties in a police station — Processing personal data and freedom of expression — Article 9 of Directive 95/46)

1. This reference from the Latvijas Augstākā tiesa (Supreme Court, Latvia) concerns the filming and publication on internet sites of a video recording of police officers carrying out their duties in a police station. The referring court seeks guidance as to the scope of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (2) and the interpretation of the exemption in Article 9 thereof (‘the journalistic purposes exception’).

EU legislation

The Charter of Fundamental Rights of the European Union

2. The right to respect for an individual’s private and family life is guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (3) In accordance with Article 8, ‘everyone has the right to the protection of personal data concerning him or her. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.’ Pursuant to Article 11, everyone has the right to freedom of expression which includes the right to receive and impart information and ideas without interference by the public authorities. (4)

3. Article 52(3) provides that in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights is the same as those laid down in that convention.

Directive 95/46

4. The following aims are listed in the preamble to Directive 95/46:

‘… there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses;

…

… given the importance of the developments under way, in the framework of the information society, of the techniques used to capture, transmit, manipulate, record, store or communicate sound and image data relating to natural persons, [Directive 95/46] should be applicable to processing involving such data;

…

… the processing of sound and image data, such as in cases of video surveillance, does not come within the scope of [Directive 95/46] if it is carried out for the purposes of public security, defence, national security or in the course of State activities relating to the area of criminal law or of other activities which do not come within the scope of [EU law];

… as far as the processing of sound and image data carried out for purposes of journalism or the purposes of literary or artistic expression is concerned, in particular in the audiovisual field, the principles of [Directive 95/46] are to apply in a restricted manner according to the provisions laid down in Article 9;

…

the processing of personal data for purposes of journalism or for purposes of literary [or] artistic expression, in particular in the audiovisual field, should qualify for exemption from the requirements of certain provisions of [Directive 95/46] in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of [the ECHR]; … Member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing …’. (5)

5. Article 1(1) of Directive 95/46 provides that Member States are to ‘protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data’.

6. The following definitions are set out in Article 2:

‘(a) “personal data” shall mean any information relating to an identified or identifiable natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

(b) “processing of personal data” (“processing”) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

…

(d) “controller” shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data …’.

7. In accordance with Article 3, Directive 95/46 applies to:

‘(1) … the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.

(2) [Directive 95/46] shall not apply to the processing of personal data:

– in the course of an activity which falls outside the scope of [EU law], such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law,

– by a natural person in the course of a purely personal or household activity’.

8. Chapter II is entitled ‘General rules on the lawfulness of the processing of personal data’. Pursuant to Article 6(1), Member States are to provide that personal data must be treated in accordance with the cumulative conditions listed therein. Included in that list is that data may only be collected for specified, explicit and legitimate purposes. (6) Article 6(2) states that the data controller must ensure compliance with the conditions in Article 6(1).

9. Article 7 sets out criteria for making data processing legitimate. These include that processing is necessary for the purposes of the legitimate interests pursued by the data controller or by the third party(ies) to whom the data are disclosed, unless such interests are overridden by the fundamental rights and freedoms of the data subject(s) protected under Article 1(1) of the directive. (7)

10. Pursuant to Article 9, which is entitled ‘Processing of personal data and freedom of expression’ (and forms part of Chapter II of Directive 95/46), ‘Member States shall provide for exemptions or derogations from the provisions of [Chapter II], Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression’.

11. Article 13 provides that Member States may adopt measures to restrict the scope of the obligations and rights provided, inter alia, in Article 6(1) when such a restriction is necessary to safeguard certain interests, such as national security, defence or public security.

National legislation

12. The referring court states that the aim of the Latvian legislation at issue is to protect the fundamental rights and freedoms of natural persons and, in particular, the right to privacy, as regards the processing of personal data concerning natural persons. Pursuant to paragraph 3 of Article 3 of the Fizisko personu datu aizsardzības likums (the Personal Data Protection Law), the national rules do not apply to the processing of personal data carried out by individuals for personal or domestic use and where, in addition, the personal data are not disclosed to third parties.

13. In accordance with that law, ‘personal data’ is defined as meaning any information concerning an identified or identifiable natural person. The ‘processing’ of personal data is any operation applied to personal data, including their collection, recording, insertion, storage, organisation, alteration, use, transfer, transmission and dissemination, blocking or deletion.

14. Article 5 of the Personal Data Protection Law provides for an exception to the rules laid down in that legislation when personal data are processed for journalistic purposes in accordance with the Law entitled Par presi un citiem masu informacijas lidzekliem (Law on press and other media) or for the purpose of artistic or literary expression.

Facts, procedure and the questions referred

15. Mr Buivids (the ‘data controller’ for present purposes) made a video recording inside a Latvian police station. The recording concerned a statement he made to the police in the context of administrative proceedings which had been initiated against him. (8) In that video recording, it is possible to see the police facilities and a number of police officers going about their duties. Mr Buivids’ conversation with the police officers whilst they carried out certain administrative functions was recorded: he can be heard as well as the police officers concerned and the person who accompanied him to the police station. Mr Buivids published the resulting video recording on the internet site...