The Information Commissioner’s Office (ICO) has fined True Vision Productions (TVP) £120,000 for filming patients at Addenbrooke’s Hospital’s maternity assessment unit without their explicit consent.

The filming, conducted using CCTV style cameras in three rooms of the Hospital in 2017, was for a Channel 4 documentary about still births and was done with the permission of the relevant NHS Trust.

Neither TVP nor clinic staff directly and specifically informed patients they would be filmed although TVP had posted filming notices near the cameras and in the waiting area and left letters about filming in the waiting room.

In total, almost 2,000 people were affected by the filming. The ICO launched an investigation after several patients at the clinic realised they had been filmed and complained to the media.

The ICO found that TVP failed to comply with data protection law because the filming involved the processing of personal data which was neither fair nor lawful in the circumstances.

It considered that patients would not have reasonably expected cameras to be present, were not given sufficient information about the cameras and some of the information provided was inaccurate because it stated that mums or visitors would not be filmed without permission which was not the case.

Data protection legislation includes a so called journalism exemption that relieves programme makers of certain obligations under data protection law where they can demonstrate filming is for a journalistic purpose and in the public interest and such obligations are incompatible with their programme making.

TVP had argued that the exemption applied and it could not have complied with the Act in the circumstances because if it had sought consent from patients before filming it could have caused them distress, distracted clinical staff and delayed treatment.

While the ICO accepted that the filming was done for journalistic purposes and did not dispute that there was a public interest in the subject matter, it considered that the company could have still complied with the Act in this case.

It dismissed TVP’s argument about patient distress, indicated TVP could have ensured production staff were on site to assist with the consent process and noted that TVP still managed to make a successful programme after changing its processes, suggesting compliance was not a barrier to its programme making.

When considering the penalty it imposed, the ICO took into account that TVP had destroyed the footage in question, had worked in close liaison with the Trust from the outset and had cooperated with the ICO.

The ICO noted however that TVP did not undertake a data protection or privacy impact assessment prior to filming and did not notify the ICO of the matter once patients raised concerns which it considered were aggravating factors in the circumstances.

In a statement TVP said “We are disappointed in the outcome of the ICO’s decision after we made strong legal representations and now will be appealing against the decision”. Channel 4 issued a statement emphasising the public interest nature of the documentary and stating it was supportive of the decision to appeal.

While the decision was made under the Data Protection Act 1998, which has now been replaced by the Data Protection Act 2018, the 2018 Act contains equivalent provisions and so the decision is still a timely reminder of the importance of considering data protection at every stage of the production process. This decision makes clear that the stakes can be very high for programme-makers.

Abbas Media Law are experts in all aspects of data protection and privacy law and regularly advise broadcasters and production companies on just these sorts of matters. AML provides regular training to production staff on data protection and privacy matters. If you are interested in receiving training or need any advice, please contact AML at info@abbasmedialaw.com