The recent High Court decision of Mr Justice Barr in Dudgeon v Supermacs Ireland Ltd., [2020] IEHC 600 has prompted discussion around access requests under Article 15 of the GDPR and Section 91 of the Data Protection Act 2018.

Justice Barr held in this case that Supermacs was not obliged to disclose CCTV recordings of an incident to a person identifiable on the recording and who claimed damages for injuries resulting from that incident.

Facts of the case

An appeal was brought to the High Court by the Plaintiff against the refusal of Groarke J. in the Circuit Court of an application for discovery of the CCTV recording taken at the Supermacs premises in Galway on 6 January 2017. The Plaintiff ordered food and "sat on a chair which broke, resulting in her falling to the ground and as a consequence whereof she sustained personal injuries, loss, damage, inconvenience and expense, which are ongoing." Supermacs admitted that the chair was defective, but denied that the Plaintiff had "fallen to the ground" as a result of the defect in the chair. This was a central feature of the mechanics of the accident and alleged injuries.

Proceedings issued in the Circuit Court and voluntary discovery was sought from Supermacs, to include the CCTV of the incident.

Before Mr Justice Barr, it was submitted on behalf of the Plaintiff that CCTV footage represents the best evidence that can be obtained in relation to the happening of an event, as it records what took place in real time, at the relevant time. The Plaintiff relied on the decision in McNamara v Dunnes Stores (Parkway) LTD [2017] IEHC 172, where Murphy J. concluded that CCTV footage depicting an incident that took place in a supermarket was "crucial" in determining whether the incident amounted to defamation.

Supermacs submitted that discovery of the CCTV footage was only being sought on behalf of the Plaintiff to verify her recollection of the alleged incident and to essentially "mend her hand" before giving evidence at the trial. It was submitted that was not a proper purpose for which discovery ought to be ordered against Supermacs.

In his decision, Mr Justice Barr questioned the true purpose of the Plaintiff obtaining the CCTV footage of the incident and was satisfied that the discovery was only being sought to verify the Plaintiff's assertion that she fell to the ground. The application was refused on that basis.

Discovery v. Access requests – what to take from this judgment

Mr Justice Barr's decision is focused on the law concerning discovery and is not related to data protection rights and the right to request access to personal data. Data controllers remain obliged to fulfil access requests in relation to CCTV footage, unless subject to a restriction under the GDPR or relevant data protection legislation.

This decision does not materially affect the right to access such CCTV, merely, it clarifies that such access needs to be sought in the right forum and in the right context / purpose. Commenting on the Supermacs decision, the Data Protection Commission stated that they "will continue to support data subjects and controllers in giving effect to all aspects of data protection law in this respect".