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.
Update your data protection knowledge
Would it help you to attend a session which looks at the latest
developments in data protection?
If so, Pinsent Masons is holding the next series of Data
Protection Update sessions in London, Manchester, Birmingham and
Glasgow during October and early November. Topics under discussion
include CCTV, Privacy Impact Assessments, the latest legal cases,
and information about the data protection policy directions as they
emerge from the Commissioner's Office and the European Union.
Places available from £250+VAT. See: Data
protection update sessions
