Recently, the Data Protection Act 1998 (‘DPA’) has increasingly been invoked by claimants attempting to prevent unfavourable publications about them. Yet, though possible, the DPA has yet not been extensively used to protect a claimant’s image rights. As has already been explained in this blog (see here), English law does not protect image rights per se, instead the only recourse to famous persons (including footballers) is through privacy, defamation, or passing off law. However, the DPA, could be another potential route for claimants.
Personal Data
Any photographs or videos taken of a footballer are capable of identifying him, and are therefore potentially ‘personal data’ for the purposes of the DPA. The footballer would therefore be a ‘data subject’. It has to be said, that a player cannot prevent pictures or videos of himself being shown or used by official media partners of the competitions he plays in or the club he plays for. The player’s playing contract and the rules of the competition, which a player agrees to adhere to, will contain provisions explaining the purpose for the processing of the data (i.e. the photos/videos taken of him). For example, the rules of a major football competition will explain that photographs and film footage, including live footage, are required to be taken for the purposes of promoting and broadcasting the event to live audiences. By virtue of agreeing to play football under the terms of his contract and the rules of the competition, the player will accept to this processing of his personal data.
However, the player may be able to prevent third parties from using images identifying him, even if such photos are taken during a football match that is viewed live by millions of people. Ultimately, therefore, the DPA has wider reaching implications than the law of privacy. It is necessary to distinguish between a general shot taken at a football match that incidentally includes a footballer, and shots focusing on one player. In the first case, the photo is unlikely to be considered to be his personal data for the purposes of the DPA, however photos or videos clearly focusing on one player are certainly capable of being personal data.
Processing of Personal Data and the Data Controller
For the purposes of the DPA, any storing of personal data and any use of them, whether or not for commercial purposes, is considered to be ‘processing’ of that data. Any person or entity exercising overall control over the purpose for which, and the manner in which, personal data is processed, will be deemed to be a ‘data controller’ for the purposes of the DPA. The data controller has to process all personal data in accordance with the Principles of the DPA and all of the other provisions contained in the Act.
In particular, all data controllers need to make sure that they comply with, inter alia, Principle 1, Principle 2, and Principle 6 of the DPA, meaning that they are processing data fairly and lawfully; only obtaining data for one or more specified and lawful purposes; and processing personal data in accordance with the rights that the data subject has under the DPA. It is quite obvious that where a third party obtains images and/or footage identifying a footballer without the consent of the footballer, the third party will be in breach of the principles of the DPA.
What are the options for the Footballer?
Pursuant to s.10(1) of the DPA, the footballer who is a data subject by virtue of photographs or film footage processed by a third part, can request the third party to cease to process the photos or videos if there is no legitimate purpose to the processing. As discussed above, a third party using the image of a footballer is unlikely to show that the use (and therefore processing) of the images is for a legitimate purpose.
The footballer would also need to show that the use of the images or footage is causing him or is likely to cause him substantial damage or substantial distress. Where images or clips of footballers are used for commercial purposes without the footballer’s consent, potential or actual substantial damage would be easy to argue, as the player is missing out on royalties or other payments he would have received had his image been similarly used under an endorsement or sponsorship agreement.
Finally, it must be shown that the substantial damage or detriment is unwarranted. In the case where images are being processed without the player’s consent and there is no legitimate purpose to the processing, any damage which is caused would clearly be unwarranted.
Applications of the DPA
As suggested above, the DPA could be used as an alternative to or as supplementary to a claim of passing off in a case where a footballer’s image rights are being infringed. Potentially, a claim to cease processing of personal data under s.10(1) of the DPA could have wider implications that a passing off claim as, unlike in passing off, under the DPA a claimant would not need to prove goodwill in his image.
Where the photos or footage are processed for a journalistic purpose, including the writing of a report of a match, or reporting on another issue, the s.32 exemption of the DPA would apply and the data controller would be exempt from the provisions of the DPA when processing the data. However, in this case, the burden of proof would be on the data controller to show that the data is being processed in view of a potential publication; must show that he reasonably believes that publication would be in the public interest; and that compliance with the provisions of the DPA is not compatible with processing of the data for the journalistic purpose. In short, s.32 of the DPA aims to preserve freedom of speech, and importantly applies even in the case where the data controller is not an actual media publisher. Therefore personal bloggers or other organisations writing news reports would be covered by the exemption.
Conclusion
The increased use of the DPA in privacy and defamation related cases has shown that the DPA is finely balanced in being claimant friendly but also preserves the freedom of speech of journalists. However, as has already been emphasized above, where image rights are infringed for commercial purposes, a claim under the DPA could be a very strong option for image rights owners.
By Andi Terziu
Law and Football 