DPA case CDP/COMP/429/2023 – Complaint Upheld (Malta, 2023)

On the 17th March 2023 the data subject lodged a complaint. An individual (the controller) had taken photographs of the data subject's home from their own home as part of a legal claim. In the photos the data subject and their child appeared in the background. These photos, due to being part of a legal claim, were sent to the Review Tribunal of Environment and Planning. The controller argued that the photographs were not processed in connection to a professional or commercial activity and that therefore the exemption under Article 2(2)(c) GDPR applied. Article 2(2)(c) GDPR states that the GDPR will not apply if the data is processed in the course of a purely personal or household activity. They also argued that the photos themselves were so grainy that the data subject could not be identified and that the data was not easily public as one would have to go personally to the Tribunal to view the photos. First, The DPA noted that the household exemption under Article 2(2)(c) GDPR must be interpreted strictly as per CJEU case law and EDPB guidelines. Processing cannot be considered purely personal when the personal data becomes accessible to an indefinite number of persons, or when this activity extends, even if partially, to the public domain. As the personal data was used for a legal claim the household exemption under Article 2(2)(c) GDPR could not apply. Second, the DPA considered that the definition of personal data under Article 4(1) GDPR refers to any 'identifiable person.' The DPA examined the photos and determined that the data subject and their child could be recognised from the photos and were therefore, identifiable. The DPA also considered that one of the individuals was a minor which required special protection under recitals 38 and 75 GDPR. Third, while it is true that the records of the Review Tribunal of Environment and Planning are not available online, the records are nonetheless publicly available. Any number of people could view the photograph