Baby battle woman can’t claim data protection exemption for YouTube video, warns expert

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.

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

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