Adam Bannister

Editor, IFSEC Global

Author Bio ▼

Adam Bannister was Editor of IFSEC Global from 2014 through to November 2019. Adam is also a former Managing Editor at Dynamis Online Media Group.
July 12, 2017

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Virgin Trains had “legitimate interest” in publishing Corbyn images, rules ICO

Virgin Trains did not breach data protection laws by publishing CCTV images of Jeremy Corbyn as he searched the company’s train carriages in search of a seat, the Information Commissioner’s Office has ruled.

Such an action would ordinarily be in breach of the law, said the ICO, but Virgin had a “legitimate interest” in releasing the footage to rebut news reports that the Labour leader had been unable to find a seat.

Richard Branson, founder of the rail operator, had tweeted out the footage, which was captured on one of his trains on 11 August 2016, to prove that spare seats were in fact available, contradicting the Labour leader’s assertion that the train was “ram-packed”.

Photo: Virgin Trains under CC3.0 licence

Corbyn was sat on the floor of the train when he made the comment, which were captured by a filmmaker accompanying him during his campaign to retain the Labour leadership.

Countering Branson’s tweet, Corbyn he had been unable to sit with his wife, and that he was only able to sit later because train staff had upgraded another family to first class.

Virgin Trains did not entirely escape censure. The ICO found that the rail operator did breach the data protection rights several passengers whose faces it had failed to pixellate.

“Misleading”

In a statement, ICO head of enforcement Steve Eckersley said: “In this case, the ICO’s view was that Virgin had a legitimate interest, namely correcting what it deemed to be misleading news reports that were potentially damaging to its reputation and commercial interests.

“It would not have been possible to achieve Virgin’s legitimate interests without publishing Mr Corbyn’s image. Virgin could only show that there were empty seats on Mr Corbyn’s journey if they showed Mr Corbyn on that journey.”

The Labour leader’s celebrity was also a relevant factor, said Eckersley, as he would have “different expectations than other passengers as to his privacy.” This was especially the case given the video of the trip he himself had published and that he should reasonably expect Virgin to “respond in kind”.

By contrast, however, the other passengers whose faces were not pixellated “were simply minding their own business” and Virgin Trains had “infringed on” their  “privacy”.

Nevertheless, the ICO is taking no action against the company as only three people in the footage were recognisable, none of whom had contacted the ICO to complain.

Shortly after the incident, Chris Brogan of B&G Associates wrote on IFSEC Global: “The sixth condition of schedule 2 [of the Data Protection Act] addresses the use of personal data for the legitimate interests of the data controller as long as it does not prejudice the rights and freedoms or legitimate interests of the data subject.

“Virgin have a legitimate interest in protecting its ‘brand’.

“Jeremy made the issue public and Virgin has defended its rights. This is a balancing act and I suggest that the information tribunal/court would find in favour of Virgin. I cannot see under the circumstances how Jeremy would win the argument that the publication of his images by Virgin prejudiced his rights.”

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