Broadcasting (amateur) matches over the internet; more and more korfball clubs want to do this or are approached by commercial parties to do so. If you plan to do this as a korfball club, you are bound by rules. Privacy legislation in particular plays an important role, as video footage of (underage) players is recorded and broadcast online.
Questions facing korfball clubs include whether it is at all permissible to broadcast footage over the internet. The investigation by the Dutch privacy watchdog (the Personal Data Authority) into 'VoetbalTV' has further increased the lack of clarity on this. For instance, does permission have to be asked? And what measures should you take as a club? We would like to clarify this via this article.
To process personal data, you always need a 'legal basis'. There should also be one for recording and broadcasting video footage. Asking permission is then often seen as a solution. However, the 'consent' basis cannot be used when broadcasting video footage.
This is because asking permission is subject to the condition that it must be given 'freely'. The person giving consent should not feel pressure or be disadvantaged. This is a thorny issue because, in practice, it may happen that a player/player gives consent anyway just because all teammates have done the same.
Asking permission also creates a lot of administrative work for korfball clubs. Own members must be asked for permission and in the case of underage members, parents/carers must be asked for permission. In addition, players of the opposing team must also be asked for permission. It should also be borne in mind that consent can be withdrawn and that consent forms must be retained.
The 'legitimate interest' (art. 6.1 sub f of the AVG) is another legal basis that offers a solution for korfball clubs. As a club, you then have to weigh up the interest in broadcasting the matches via the internet against the privacy interests of players/players being violated. Why it is then more important to offer livestreams must be carefully weighed up and documented. You also have to explain this to your members.
When live streaming matches of underage club members, that consideration will have to be even more careful. In our opinion, the interests of korfball clubs generally do not outweigh the privacy interests of underage players and players (and parents/carers). In an exceptional situation, such as the corona crisis, this may be different. See examples below.
Currently (October 2020), the corona crisis prohibits spectators from being present at (amateur) sports matches. This can be a legitimate reason to broadcast the matches of teams with underage players via a live stream, so that family and supporters can still be 'present' at a match. That interest again expires when spectators are allowed to be physically present again. The balance of interests should therefore be reviewed periodically to see whether it is still tipped in the same direction. In addition, all security measures should be in place.
Another example is a match of a high-level amateur team or a match for the league win. The news value such a match can have may justify broadcasting it online. The interest you have as a club is then fulfilled by the journalistic purpose (Article 85 of the AVG).
So, per age group and situation, it may differ whether broadcasting matches is proportionate to the privacy violation. So as a sports club, you should always make that balancing of interests.
If, as a club, you are going to live stream match footage, you should also think about all the other obligations you have. One important obligation, for example, is the duty to inform.
Inform your players/players about the recordings and what happens to the footage. Add this to your privacy statement. Moreover, remember that players must also be able to object and inform them about this. Such an objection does not always have to be well-founded, but there may be situations in which a player's privacy interests outweigh the importance of broadcasting video footage of him or her. Also remember to inform the counterparty in the same way.
If an audience is present, they may also be in the picture. So make the public aware of this as well by placing signs, for example. For more information (on e.g. retention periods), you can then refer to the privacy statement (e.g. by means of a QR code).
In addition to the information obligation, security must also be in order. Important choices that come into play when weighing up privacy breaches with players/players include:
As a club, do you use a (commercial) external party when livestreaming? If so, you should carefully read the agreement you enter into with that party and check whether the conditions are reasonable (e.g. with regard to liability).
Unfortunately, the Personal Data Authority does not yet have clear advice for sports clubs on live broadcasting of matches. Indeed, the FootballTV mentioned in the introduction also stored video footage, on the basis of 'legitimate interest'. According to the Personal Data Authority, this was unlawful because mainly a commercial interest was served.
This does not seem to us to be the case for korfball clubs that want to broadcast matches online. Internet broadcasting of amateur matches is mainly a service to supporters and members of the korfball club.
For now, we therefore see the 'legitimate interest' as an option for korfball clubs to be able to broadcast match footage via the internet. Clubs should, however, carefully argue (and document) their interest.
For matches involving minors, the privacy breach is normally too great to justify broadcasting a match on the internet. However, in exceptional cases, such as the corona crisis, matches of minors may be broadcast over the internet. Korfball clubs must then, of course, have all other (privacy) obligations that live streaming entails in order as well.
As FootballTV has started legal proceedings against the Personal Data Authority, we expect more clarity on this issue within a few months. We do want to remind you that our advice may change then.
Then contact us.