Proceedings brought by Sergejs Buivids.
Date: 2019-02-14
31


According to the case-law of the Court, the image of a person recorded by a camera constitutes ‘personal data’ within the meaning of Article 2(a) of Directive 95/46 inasmuch as it makes it possible to identify the person concerned (see, to that effect, judgment of 11 December 2014, Ryneš, C‑212/13, EU:C:2014:2428, paragraph 22).
34


In the context of a video-surveillance system, the Court has held that a video recording of persons which is stored on a continuous recording device — the hard disk drive of that system — constitutes, pursuant to Article 2(b) and Article 3(1) of Directive 95/46, the automatic processing of personal data (see, to that effect, judgment of 11 December 2014, Ryneš, C‑212/13, EU:C:2014:2428, paragraphs 23 and 25).
37


The Court has held that the operation of loading personal data onto an internet page must be regarded as constituting such processing (see, to that effect, judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 25, and of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 26).
38


In that connection, the Court has also specified that placing information on an internet page entails the operation of loading that page onto a server and the operations necessary to make that page accessible to people who are connected to the internet. Such operations are performed, at least in part, automatically (see, to that effect, judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 26).
41


In so far as they render inapplicable the system of protection of personal data provided for in Directive 95/46 and thus deviate from the objective underlying it, namely to ensure the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data, such as the right to respect for private and family life and the right to the protection of personal data, guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the exceptions provided for in Article 3(2) of that directive must be interpreted strictly (see, to that effect, judgments of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 38, and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 37).
42


With regard to the main proceedings, it is apparent from the information submitted to the Court that, first, the recording and publication of the video in question cannot be regarded as a processing of personal data in the exercise of an activity which falls outside the scope of EU law, nor can it be understood as a processing operation which concerns public security, defence, State security and the activities of the State in areas of criminal law, within the meaning of the first indent of Article 3(2) of Directive 95/46. In that regard, the Court has held that the activities which are mentioned by way of example in that article are, in any event, activities of the State or of State authorities unrelated to the fields of activity of individuals (see, to that effect, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 36 and the case-law cited).
43


Secondly, since Mr Buivids published the video in question on a video website on which users can send, watch and share videos, without restricting access to that video, thereby permitting access to personal data to an indefinite number of people, the processing of personal data at issue in the main proceedings does not come within the context of purely personal or household activities (see, by analogy, judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 47; of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 44; of 11 December 2014, Ryneš, C‑212/13, EU:C:2014:2428, paragraphs 31 and 33; and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 42).
46


Furthermore, it is apparent from the Court’s case-law that the fact that information is provided as part of a professional activity does not mean that it cannot be characterised as ‘personal data’ (see, to that effect, judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 30 and the case-law cited).
49


It must be observed, as a preliminary point, that, according to settled case-law of the Court, the provisions of a directive must be interpreted in the light of the aims pursued by the directive and the system which it establishes (judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 51 and the case-law cited).
50


In that regard, it is apparent from Article 1 of Directive 95/46 that its objective is that the Member States should, while permitting the free flow of personal data, protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy, with respect to the processing of personal data. That objective cannot, however, be pursued without having regard to the fact that those fundamental rights must, to some degree, be reconciled with the fundamental right to freedom of expression. Recital 37 of Directive 95/46 makes it clear that Article 9 seeks to reconcile two fundamental rights: the protection of privacy and freedom of expression. This is a task for the Member States (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraphs 52 to 54).
51


The Court has already held that, in order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 56).
52


Thus, it is apparent from the legislative history of Directive 95/46 that the exemptions and derogations provided for in Article 9 of that directive apply not only to media undertakings but also to every person engaged in journalism (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 58).
53


It follows from the Court’s case-law that ‘journalistic activities’ are those which have as their purpose the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 61).
57


Account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. Thus, the Court has already held that the medium which is used to transmit the processed data, whether it be classic in nature, such as paper or radio waves, or electronic, such as the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’ (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 60).
59


In the present case, it is for the referring court to determine whether it appears from the video in question that the sole purpose of the recording and publication of the video was the disclosure to the public of information, opinions or ideas (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 62).
63


It should be noted that the exemptions and derogations in Article 9 of Directive 95/46 must be applied only where they are necessary in order to reconcile two fundamental rights, namely the right to privacy and the right to freedom of expression (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 55).
64


Thus, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy requires that the derogations and limitations in relation to the protection of data provided for in Chapters II, IV and VI of Directive 95/46 must apply only in so far as is strictly necessary (see, to that effect, judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 56).
65


It should be noted that Article 7 of the Charter, concerning the right to respect for private and family life, contains rights which correspond to those guaranteed by Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, (‘the ECHR’) and that, in accordance with Article 52(3) of the Charter, Article 7 thereof is thus to be given the same meaning and the same scope as Article 8(1) ECHR, as interpreted by the case-law of the European Court of Human Rights (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 70). The same is true of Article 11 of the Charter and Article 10 ECHR (see, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 147).