Image and sound recordings of persons in medical institutions are health data.
Image and sound recordings of persons accommodated in a medical facility are health data and thus special categories of personal data within the meaning of Article 9(1) of the GDPR, the processing of which is only permitted under certain conditions. Already the making of the image and sound recordings constitutes processing within the meaning of the GDPR, even if the recordings are not used. If the data is processed for journalistic purposes, this falls under the media privilege pursuant to Article 85 (2) of the GDPR.
The plaintiff has suffered from severe intelligence deficits and an autism disorder since early adolescence and was treated as a patient in the closed psychiatric ward. The defendant, a journalist and co-worker, had herself employed as an intern at the clinic where the plaintiff was staying under a false name with the aim of conducting undercover research. During her internship, the defendant secretly made audio and video recordings on the ward. In the process, recordings were also made of the plaintiff. The disputed recordings were made for a TV format to expose grievances. However, the audio and visual recordings of the plaintiff were not part of the programme, nor was any other information about the plaintiff disseminated. The plaintiff argued that – irrespective of the question of whether the press may later publicly disseminate illegally obtained information in the public information interest – the collection and processing of data in the particularly protected area of the closed psychiatric ward with data particularly protected under Art. 9 of the GDPR had already been unlawful here. The plaintiff claimed that image and sound recordings had indeed been made of him in protected areas and situations, and that health data requiring confidentiality had also been processed.
The court ruled that the image and sound recordings were special categories of personal data within the meaning of Article 9 of the GDPR, the processing of which was only permitted under certain conditions. In the present case, however, the media privilege applied. “Within the framework of the balancing required in this context, the decisive consideration is that a ban on the processing of collected data in the run-up to a possible publication would affect the defendants at the research stage, … interferes with the core area of the freedom of the press and of broadcasting, which is protected by fundamental rights, and cannot be reconciled with this. In addition, there was an overriding public interest in information on the subject of the research – abuses in the health sector. (OLG Cologne, Case No. 15 W 21/19 of 18.07.2019, para. 15) “This is because the provision of Article 9 of the GDPR does not apply to processing for – in this case – ‘journalistic purposes’ by persons ‘concerned’ with it by private broadcasters and their ‘auxiliary and associated companies’. This regulation is based on the opening clause in Article 85(2) of the GDPR.” (OLG Cologne, Case No. 15 W 21/19 of 18.07.2019, para. 35)