Thursday, April 15, 2010

Which photos reveal "sensitive" personal data?

There are hundreds of billions of photos and videos online now. As a matter of common sense and common courtesy, users should not upload pictures or videos of other people to hosting platforms without their consent. Moreover, users should take particular care when uploading photos which might reveal "sensitive" personal data?

Privacy laws provide lots of extra legal protections to "sensitive" personal data. Trying to define what is "sensitive" is no easy task. The EU Data Protection Directive uses this definition: "personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life."

But what is "sensitive personal data" in the context of photos or videos? In one extreme logical sense, any photo of a person reveals "racial or ethnic origin". A picture of my face reveals that I am a middle-aged Caucasian male of European descent, revealing my racial or ethnic origin, as well as the fact that I usually wear glasses, indicative of the health issue of myopia. Does that mean that every photo or video of a person should be treated according to the legal standards of "sensitive personal data"? Most people would assume that is neither possible nor desirable, since it could require the explicit consent of data subjects (in writing, in some countries, and subject to prior approval by the DPA, in other countries) before their photos could be uploaded to the web. Clearly, this is not the way that the web works today, and indeed it would be completely unworkable.

I've discussed this issue with many people, in particular in the context of photos taken on public streets. Some privacy regulators have shared their (rather extreme) opinion with me that a photo or video of someone sitting in a wheel chair, or even someone walking in the vicinity of a hospital, should be treated as "sensitive", since it might reveal "health" status. Similarly, a photograph of a person appearing on a street near a mosque should be treated as "sensitive" since it might reveal "religious beliefs". But it's hard for me to imagine a crude solution like drawing a no-photograph zone around mosques and hospitals. It also seems wrong to me to apply the legal standard of "sensitive" personal data to situations which merely increase the likelihood of associations. So, many people take a more nuanced approach. A photo or video often lacks the context to make it meaningful: a photograph of myself in front of a cathedral doesn't automatically mean that I'm Catholic, and isn't necessarily revealing "sensitive" personal data. A photograph of people praying there maybe does. But does the fact that such photos are taken in a public place, and are widely considered banal, change the analysis of whether they should fit into the more restrictive categories of "sensitive" personal data?

All in all, it's very hard to know where to draw the lines. Hopefully, people who take photos and videos will be respectful of the very serious issues that the legal concept of "sensitive" personal data" is meant to protect. But the lines separating "sensitive" from "normal" personal data will usually be fuzzy and contextual. Think of the simple example of a photo of two people holding hands. Is this indicative of their sexual orientation, and hence, "sensitive" personal data, or really, just two people holding hands? I suppose it depends on the context. This is not something that photo or video hosting platforms or software filters are able to know. Ultimately, this is all about protecting people's human dignity, and that fundamentally, is a human judgment.

1 comment:

Anonymous said...

In the UK the courts have held that a photo is sensitive personal data if it reveals the ethnic origin of the persons in the picture (Murray v Big Pictures).
However, if the photo is taken in a public place then processing is likely to be justified as that data has been made public (see art. 8(2)(e) of the Directive).
No idea how one deals with photos taken in private places....