True Vision Productions Ltd v Information Commissioner

True Vision Productions Ltd (‘TVP’) is a highly regarded television production company, known for making sensitive films about social justice issues. In 2016 TVP was commissioned to produce a documentary on the issue of still birth. It was eventually broadcast on Channel 4 in October 2018 under the title Child of Mine. The programme was to have three strands, addressing different circumstances in which still births may occur. The third strand concerned a non-high risk pregnancy in which the mother notices that her baby is not moving and is then told that the baby’s heart has stopped. TVP decided that it should try to illustrate this occurrence with film of the moment at which the still-birth is diagnosed. Such occurrences are relatively rare.
In consultation with clinical staff at Addenbrooke’s hospital, Cambridge, it was agreed that, in order to try to capture the desired footage, TVP would equip 3 consulting rooms at the hospital’s walk-in clinic with CCTV cameras which would record pictures and sound continuously. The recordings could not be viewed without the prior consent of the patient concerned, and any that were not accessed were automatically deleted after 72 hours. As well as the CCTV filming in the consultation rooms, TVP were engaged in filming elsewhere in the hospital using hand-held cameras. There were notices about TVP’s filming displayed around the hospital and in the clinic’s waiting room. There were also notices next to the CCTV cameras in the consulting rooms.
Filming using the CCTV cameras commenced in July 2017 and continued until late November 2017. In the event, none of the footage was ever viewed or retained beyond the 72 hour period. Filming was halted in November 2017 due to adverse publicity in the national media. This led the Information Commissioner (‘ICO’) to investigate and, on 8 April 2019, the ICO imposed a monetary penalty of £120,000, having determined that the filming involved the unfair processing of patients’ personal data, in breach of the first Data Protection Principle (Data Protection Act 1998, Schedule 1).
TVP appealed.

Whether the journalism exemption in DPA 1998 s32 applied such that the personal data processed during the filming were exempt from the First Data Protection Principle (‘DPP1’). If not, whether a Monetary Penalty Notice (‘MPN’) should have been issued, and in what amount.

It was not disputed that the processing was undertaken with a view to the publication of journalistic material (s32(1)(a)). Nor was it disputed that TVP reasonably believed that publication would be in the public interest (s32(1)(b)). The Judge also accepted that TVP subjectively believed that compliance with DPP1 was incompatible with the purposes of journalism. The appeal turned on whether, in all the circumstances, that belief was reasonable (s32(1)(c).

Judge Jacobs held that TVP’s decision to seek to capture the moment of diagnosis was a matter of editorial judgement that the ICO and the Tribunal could not interfere with. Since the processing required in order to seek to capture that footage involved sensitive personal data, explicit consent would have been necessary to achieve compliance with Schedule 3. Mothers attending the clinic would not be in a fit state to pay attention to the CCTV cameras and notices and the clinicians would not allow TVP to give mothers more specific information for fear of alerting them to the possibility that they may be experiencing a stillbirth. In those circumstances, it was impossible to provide mothers with the information they needed in order to obtain their explicit consent and it was reasonable for TVP to believe that compliance with Schedule 3 was therefore incompatible with its journalistic purposes.

However, Judge Jacobs held that the data could have been collected using hand-held cameras instead of CCTV and that, if this had been done, mothers would have been more likely to realise that they were being filmed. This was a “modest, practical and reasonable alternative method that would at least have prevented recording taking place without the mothers being aware of it”. In this respect, it was not reasonable to believe that compliance with the principle of fairness was incompatible with the purposes of journalism.

An MPN was appropriate because TVP had not recognised that its filming was governed by data protection law and because it concerned intimate data collected from women in a distracted and vulnerable state.

The MPN imposed by the ICO was excessive. The appropriate sum was £20,000 (or £18,000 if paid within one month).

It is notable that the Judge accepted TVP’s subjective belief that processing was incompatible with the provisions of the DPA 1998, even though TVP did not have data protection law in mind. It was sufficient that TVP considered the mothers’ privacy in a general sense.
It is also notable that the Judge declined to interfere with or criticise TVP’s editorial decision that steps should be taken to capture on film the moment of diagnosis (rejecting an argument of the ICO that a high quality programme could be, and was, produced without such footage).
However, the conclusion that TVP’s belief about incompatibility with DPP1 was unreasonable, even though its belief about incompatibility with Schedule 3 was reasonable (Schedule 3 compliance being a necessary condition for compliance with DPP1 in a sensitive personal data case) suggests that journalists must consider what can be done to maximise fairness, even if it is reasonable to believe that full compliance with DPP1 cannot be achieved. This is perhaps clearer from the wording of the equivalent exemption in DPA 2018 (Sch 2, para 26).
This was the first and only occasion on which the ICO imposed an MPN on a media organisation under the DPA 1998. Under the DPA 2018, the ICO requires the permission of the Court before an MPN can be imposed in respect of processing for the special purposes.