The First Tier Tribunal has reduced – from £120,000 to £20,000 – the fine imposed by the Information Commissioner’s Office (ICO) on True Vision Productions (TVP) after it filmed patients at Addenbrooke’s Hospital without their explicit consent.

The filming, conducted using CCTV style cameras at the hospital in 2017, was for a Channel 4 documentary entitled Child of Mine 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.

The ICO launched an investigation after several patients at the clinic realised they had been filmed and complained to the media. Ofcom did not investigate because the footage in question was not actually used within the broadcast documentary, and thus did not fall within its remit.

The ICO found that the filming did not comply with the fairness requirements of data protection law because patients were not given sufficient information about it at the time and fined TVP £120,000 as a result.  TVP then appealed the ICO’s decision to the First Tier Tribunal.

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 because it could not have complied with the fairness requirements of the Act in the circumstances.

The ICO had rejected this argument and the Tribunal agreed with the ICO on appeal, finding that because alternative methods of filming, e.g. using hand-held cameras, were available to TVP and TVP could have used those methods instead, it could not rely on the journalism exemption.

The Tribunal did, however, significantly reduce the fine that the ICO had given TVP from £120k to £20k, because the breach had not been deliberate and did not justify such a serious penalty.

This decision is a reminder that data protection law applies to all stages of journalism and television programme-making and failing to ensure that filming is data protection law compliant can have significant consequences.

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