What’s going on with Data Protection?

The EUCJ has just published another decision regarding data protection that got me puzzled (but I’m not the only one!).

This one is primarily concerned with the interpretation of exceptions to the 1995 directive, but it also has interesting things to say regarding the infamous so-called right to be forgotten decision where legitimate interests in personal data processing were involved.

The facts are simple: someone puts a camera to monitor the entrance of his house. One day, people break in, but they are later identified thanks to the camera. Then, these suspects challenge the legality of the camera system on the grounds that they were not notified of the processing of their personal data.

Article 3 of the 1995 directive provides:

2  This Directive shall not apply to the processing of personal data: […]

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

But for the Court, (emphasis is mine)

33  To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity

This is a strange reasoning in my opinion, as it seems to make no distinction between purely personal activities and purely household activities—they are now combined under the criteria of the “private setting.”


So here’s how this applies to us: thanks to Neil, we already have a solution!

How does this relate to the so-called right to be forgotten?

The Court notes that:

34  At the same time, the application of Directive 95/46 makes it possible, where appropriate, to take into account — in accordance, in particular, with Articles 7(f), 11(2), and 13(1)(d) and (g) of that directive — legitimate interests pursued by the controller, such as the protection of the property, health and life of his family and himself, as in the case in the main proceedings.

I wish the Court followed the same approach in the so-called Right to be forgotten decision. But instead, the legitimate interest of the public to access published information has not been taken into account.