The data commissioner is unable to continue an investigation into the use of personal data of extras who had their likeness scanned while working on the set of Gladiator 2 due to the company responsible being outside of European jurisdiction.
In 2023, extras appearing in Ridley Scott’s latest sword-and-sandals epic expressed their concern after being asked to have their likeness scanned in a camera-filled booth and sign a release form for Maltese film production company Latina Pictures Limited.
According to documents seen by Times of Malta, the release form gave consent to Latina Pictures for the “reproduction, exhibition, transmission, broadcast and exploitation” of their image.
It also gave producers permission to “record”, “photograph”, “reproduce” and “simulate” the extra’s name, voice and picture “in any manner whatsoever” – while not signing away the actor’s likeness or identity for future projects.
But when concerns were raised about the use of the data collected, an ex officio investigation by the office of the information and data protection commissioner (IDPC) ran up against a brick wall.
In correspondence sent to Alliance for Practitioners, Artists and Crew for Hollywood Abroad (APACHA) co-founder Matthew Maggi, who brought the case to the commissioner’s attention, the IDPC revealed that Latina Pictures claimed to not be in control of the data.
The commissioner said Latina Pictures did “not consider itself to be the controller for the personal data in question” due to it being “neither the owner of the device [that scanned the extras’ likeness] nor is it storing or keeping any personal data of the extras”.
It said it was subsequently directed to UK company August Street Films Limited which, the commissioner was told by Latina Pictures, owned the scanning device and “determines the purposes and means of the processing of the personal data in question”.
Latina Pictures claimed to not be in control of the data
However, when contacted, August Street Films told the commissioner, that due to being in the UK, it was outside of the EU’s General Data Protection Regulation (GDPR) covering personal data, which the commissioner is charged with enforcing.
Europe’s GDPR grants various rights to individuals in respect to their data, including access, erasure and objecting to it being used for certain purposes.
August Street Films told the IDPC it “neither offers goods or services to data subjects located in the EU”, the commissioner explained.
“Moreover, August Street Films Limited emphasised that while they collaborate extensively with Latina Pictures Limited on the production of Gladiator 2, this artistic collaboration does not translate into a joint determination of the purposes and means of processing personal data.”
The IDPC concluded that due to August Street Films Limited not being based in Malta and outside EU regulation, “this office does not have the jurisdiction to intervene further in this matter”.
It advised that anyone seeking to lodge a complaint should take up the matter with the UK’s Information Commissioner’s Office (ICO) instead.
Filming for Gladiator 2 had to be put on hold in July 2023 following the announcement of a Hollywood actors’ union worldwide strike in protest at dwindling pay and the threat posed by AI, which employs the scanned likenesses of actors.
Speaking to Times of Malta at the time of the strike, some extras said the scanning had happened days before the production was shut down while others said scans took place during the early days of filming.