Clegg calls for a data protection public interest defence (where there already is one)

In an interesting development of the tendency of politicians to call for laws which aren’t really necessary, Nick Clegg has apparently called for data protection law to be changed to what it already says

The Telegraph reports that Nick Clegg has called for changes to data protection, bribery and other laws to “give journalists more protection when carrying out their job”. The more informed of you will have spotted the error here: data protection law at least already carries a strong exemption for journalistic activities. Clegg is quoted as saying

There should be a public interest defence put in law – you would probably need to put it in the Data Protection Act, the Bribery Act, maybe one or two other laws as well – where you enshrine a public interest defence for the press so that where you are going after information and you are being challenged, you can set out a public interest defence to do so

Section 32 of the Data Protection Act 1998 provides an exemption to almost all of a data controller’s obligations under the Act regarding the processing of personal data if

(a)the processing is undertaken with a view to the publication by any person of any journalistic…material,

(b)the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with [the publication by any person of any journalistic...material]

This provision (described as “extremely wide” at Bill stage1) was considered at length in Part H of the report of the Leveson Inquiry into the Culture, Practices and Ethics of the Press, which looked at the press and data protection. Indeed, Leveson recommended section 32 be amended and narrowed in scope. Notably, he recommended that the current subjective test (“the data controller reasonably believes”) should be changed so that section 32 could only be relied on if inter alia “objectively the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication” (emphasis added). I know we’ve all forgotten about Leveson now, and the Press look on the report as though it emerged, without context, from some infernal pit, but even so, I’m surprised Mr Clegg is calling for the introduction of a provision that’s already there.

Perhaps, one might pipe up, he was talking about the section 55 DPA offence provisions (indeed, the sub-heading to the Telegraph article does talk in terms of journalists being protected “when being prosecuted”. So let’s look at that: section 55(2)(d) provides in terms that the elements of the offence of unlawful obtaining etc of personal data are not made out if

 in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest

So, we have not just a public interest defence to a prosecution, but, even stronger, a public interest provision which means an offence is not even committed if the acts were justified as being in the public interest.

Maybe Mr Clegg thinks that public interest provision should be made even stronger when journalists are involved. But I’m not sure it realistically could be. Nonetheless, I await further announcements with interest.

1Hansard, HC, vo1315, col 602, 2 July 1998 (as cited in Philip Coppel QC’s evidence to the Leveson Inquiry).

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Monitoring of blogs and lawful/unlawful surveillance

Tim Turner wrote recently about the data protection implications of the monitoring of Sara Ryan’s blog by Southern Health NHS Trust. Tim’s piece is an exemplary analysis of how the processing of personal data which is in the public domain is still subject to compliance with the Data Protection Act 1998 (DPA):

there is nothing in the Data Protection Act that says that the public domain is off-limits. Whatever else, fairness still applies, and organisations have to accept that if they want to monitor what people are saying, they have to be open about it

But it is not just data protection law which is potentially engaged by the Trust’s actions. Monitoring of social media and networks by public authorities for the purposes of gathering intelligence might well constitute directed surveillance, bringing us explicitly into the area of human rights law. Sir Christopher Rose, the Chief Surveillance Commissioner said, in his most recent annual report

my commissioners remain of the view that the repeat viewing of individual “open source” sites for the purpose of intelligence gathering and data collation should be considered within the context of the protection that RIPA affords to such activity

“RIPA” there of course refers to the complex Regulation of Investigatory Powers Act 2000 (RIPA) (parts of which were reputedly “intentionally drafted for maximum obscurity”)1. What is not complex, however, is to note which public authorities are covered by RIPA when they engage in surveillance activities. A 2006 statutory instrument2 removed NHS Trusts from the list (at Schedule One of RIPA) of relevant public authorities whose surveillance was authorised by RIPA. Non-inclusion on the Schedule One lists doesn’t as a matter of fact or law mean that a public authority cannot undertake surveillance. This is because of the rather odd provision at section 80 of RIPA, which effectively explains that surveillance is lawful if carried out in accordance with RIPA, but surveillance not carried out in accordance with RIPA is not ipso facto unlawful. As the Investigatory Powers Tribunal put it, in C v The Police and the Home Secretary IPT/03/32/H

Although RIPA provides a framework for obtaining internal authorisations of directed surveillance (and other forms of surveillance), there is no general prohibition in RIPA against conducting directed surveillance without RIPA authorisation. RIPA does not require prior authorisation to be obtained by a public authority in order to carry out surveillance. Lack of authorisation under RIPA does not necessarily mean that the carrying out of directed surveillance is unlawful.

But it does mean that where surveillance is not specifically authorised by RIPA questions would arise about its legality under Article 8 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. The Tribunal in the above case went on to say

the consequences of not obtaining an authorisation under this Part may be, where there is an interference with Article 8 rights and there is no other source of authority, that the action is unlawful by virtue of section 6 of the 1998 Act.3

So, when the Trust was monitoring Sara Ryan’s blog, was it conducting directed surveillance (in a manner not authorised by RIPA)? RIPA describes directed surveillance as covert (and remember, as Tim Turner pointed out – no notification had been given to Sara) surveillance which is “undertaken for the purposes of a specific investigation or a specific operation and in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)” (there is a further third limb which is not relevant here). One’s immediate thought might be that no private information was obtained or intended to be obtained about Sara, but one must bear in mind that, by section 26(10) of RIPA “‘private information’, in relation to a person, includes any information relating to his private or family life” (emphasis added). This interpretation of “private information” of course is to be read alongside the protection afforded to the respect for one’s private and family life under Article 8. The monitoring of Sara’s blog, and the matching of entries in it against incidents in the ward on which her late son, LB, was placed, unavoidably resulted in the obtaining of information about her and LB’s family life. This, of course, is the sort of thing that Sir Christopher Rose warned about in his most recent report, in which he went on to say

In cash-strapped public authorities, it might be tempting to conduct on line investigations from a desktop, as this saves time and money, and often provides far more detail about someone’s personal lifestyle, employment, associates, etc. But just because one can, does not mean one should.

And one must remember that he was talking about cash-strapped public authorities whose surveillance could be authorised under RIPA. When one remembers that this NHS Trust was not authorised to conduct directed surveillance under RIPA, one struggles to avoid the conclusion that monitoring was potentially in breach of Sara’s and LB’s human rights.

1See footnote to Caspar Bowden’s submission to the Intelligence and Security Committee
2The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2006
3This passage was apparently lifted directly from the explanatory notes to RIPA

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Information-chairing

The MPs’ expenses scandal invigorated freedom of information in the UK. For one wood-carver in particular, it appears also to have moved him to furniture-making excellence. On 28 September the Antiques Roadshow, on an outing to Kirby Hall in Northamptonshire, featured the unnamed craftsman and his creation – a chair engraved with the words “The Freedom of Information Act” and with carvings of Gordon Brown, David Cameron, Nick Clegg, The Daily Telegraph…and a duckhouse.

Untitled2

The rather magnificent chair, which took 500 hours to create, was valued at anywhere between £2,000 and £10,000 “and upwards”.Untitled

As expert Paul Atterbury suggested, perhaps its most appropriate home would be somewhere in the Palace of Westminster, to serve as a perpetual reminder to MPs.

(The programme is available, in the UK at least, on BBC iPlayer, until 4 October. Relevant extracts are at 17:54 to 19:05 and 29:23 to 34:39 minutes).

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Brooks Newmark, the press, and “the other woman”

UPDATE: 30.09.14 Sunday Mirror editor Lloyd Embley is reported by the BBC and other media outlets to have apologised for the use of women’s photos (it transpires that two women’s images appropriated), saying

We thought that pictures used by the investigation were posed by models, but we now know that some real pictures were used. At no point has the Sunday Mirror published any of these images, but we would like to apologise to the women involved for their use in the investigation

What I think is interesting here is the implicit admission that (consenting) models could have been used in the fake profiles. Does this mean therefore, the processing of the (non-consenting) women’s personal data was not done in the reasonable belief that it was in the public interest?

Finally, I think it’s pretty shoddy that former Culture Secretary Maria Miller resorts to victim-blaming, and missing the point, when she is reported to have said that the story “showed why people had to be very careful about the sorts of images they took of themselves and put on the internet”

END UPDATE.

With most sex scandals involving politicians, there is “the other person”. For every Profumo, a Keeler;  for every Mellor, a de Sancha; for every Clinton, a Lewinsky. More often than not the rights and dignity of these others are trampled in the rush to revel in outrage at the politicians’ behaviour. But in the latest, rather tedious, such scandal, the person whose rights have been trampled was not even “the other person”, because there was no other person. Rather, it was a Swedish woman* whose image was appropriated by a journalist without her permission or even her knowledge. This raises the question of whether such use, by the journalist, and the Sunday Mirror, which ran the exposé, was in accordance with their obligations under data protection and other privacy laws.

The story run by the Sunday Mirror told of how a freelance journalist set up a fake social media profile, purportedly of a young PR girl called Sophie with a rather implausible interest in middle-aged Tory MPs. He apparently managed to snare the Minister for Civil Society and married father of five, Brooks Newmark, and encourage him into sending explicit photographs of himself. The result was that the newspaper got a lurid scoop, and the Minister subsequently resigned. Questions are being asked about the ethics of the journalism involved, and there are suggestions that this could be the first difficult test for IPSO, the new Independent Press Standards Organisation.

But for me much the most unpleasant part of this unpleasant story was that the journalist appears to have decided to attach to the fake twitter profile the image of a Swedish woman. It’s not clear where he got this from, but it is understood that the same image had apparently already appeared on several fake Facebook accounts (it is not suggested, I think, that the same journalist was responsible for those accounts). The woman is reported to be distressed at the appropriation:

It feels really unpleasant…I have received lot of emails, text messages and phone calls from various countries on this today. It feels unreal…I do not want to be exploited in this way and someone has used my image like this feels really awful, both for me and the others involved in this. [Google translation of original Swedish]

Under European and domestic law the image of an identifiable individual is their personal data. Anyone “processing” such data as a data controller (“the person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed”) has to do so in accordance with the law. Such processing as happened here, both by the freelance journalist, when setting up and operating the social media account(s), and by the Sunday Mirror, in publishing the story, is covered by the UK Data Protection Act 1998 (DPA). This will be the case even though the person whose image was appropriated is in Sweden. The DPA requires, among other things, that processing of personal data be “fair and lawful”. It affords aggrieved individuals the right to bring civil claims for compensation for damage and distress arising from contraventions of data controllers’ obligations under the DPA. It also affords them the right to ask the Information Commissioner’s Office (ICO) for an assessment of the likelihood (or not) that processing was in compliance with the DPA.

However, section 32 of the DPA also gives journalism a very broad exemption from almost all of the Act, if the processing is undertaken with a view to publication, and the data controller reasonably believes that publication would be in the public interest and that compliance with the DPA would be incompatible with the purposes of journalism. As the ICO says

The scope of the exemption is very broad. It can disapply almost all of the DPA’s provisions, and gives the media a significant leeway to decide for themselves what is in the public interest

The two data controllers here (the freelancer and the paper) would presumably have little problem satisfying a court, or the ICO, that when it came to processing of Brooks Newmark’s personal data, they acted in the reasonable belief that the public interest justified the processing. But one wonders to what extent they even considered the processing of (and associated intrusion into the private life of) the Swedish woman whose image was appropriated. Supposing they didn’t even consider this processing – could they reasonably say they that they reasonably believed it to have been in the public interest?

These are complex questions, and the breadth and ambit of the section 32 exemption are likely to be tested in litigation between the mining and minerals company BSG and the campaigning group Global Witness (currently stalled/being considered at the ICO). But even if a claim or complaint under DPA would be a tricky one to make, there are other legal issues raised. Perhaps in part because of the breadth of the section 32 DPA exemption (and perhaps because of the low chance of significant damages under the DPA), claims of press intrusion into private lives are more commonly brought under the cause of action of “misuse of private information “, confirmed – it would seem – as a tort, in the ruling of Mr Justice Tugendhat in Vidal Hall and Ors v Google Inc [2014] EWHC 13 (QB), earlier this year. Damage awards for successful claims in misuse of private information have been known to be in the tens of thousands of pounds – most notably recently an award of £10,000 for Paul Weller’s children, after photographs taken covertly and without consent had been published in the Mail Online.

IPSO expects journalists to abide by the Editor’s Code, Clause 3 of which says

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. Account will be taken of the complainant’s own public disclosures of information

and the ICO will take this Code into account when considering complaints about journalistic processing of personal data. One notes that “account will be taken of the complainant’s own public disclosures of information”, but one hopes that this would not be seen to justify the unfair and unethical appropriation of images found elsewhere on the internet.

*I’ve deliberately, although rather pointlessly – given their proliferation in other media – avoided naming the woman in question, or posting her photograph

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Theft of police video interviews – a data protection issue for the CPS?

The theft of recordings of police interviews with victims of sexual abuse from a Manchester firm has potentially serious data protection implications for the CPS

UPDATE: 22 September – the Manchester Evening News reports that the burglary took place at a flat. No doubt the ICO, and the CPS will want to know whether the storage of hardware by the firm was appropriate to the sensitivity of the data held. END UPDATE

The 7th principle in Schedule One of the Data Protection Act 1998 requires a data controller to have appropriate technical and organisational measures in place to safeguard against loss etc. of personal data. Furthermore, if the data controller is appointing a contractor to process personal data, it should select that contractor on the basis that it has equivalent measures in place, ensure that the contractor only acts on instructions from the data controller and all of this should be evidenced in writing. Failure to comply with this 7th principle is a contravention of the data controller’s obligation under section 4(4), and serious contraventions, of a kind likely to cause substantial damage or substantial distress, can attract enforcement action from the Information Commissioner (ICO), including monetary penalty notices (MPNs), to a maximum of £500,000. Note the “likely” – a near miss, in data security terms, can still lead to an MPN. It is the failure to have appropriate measures in place (or a suitable contract) which is the contravention of the DPA – not the data security incident in itself.

With this in mind, the Crown Prosecution Service (CPS) must be considering its vulnerability to enforcement action by the ICO, following reports of thefts of highly sensitive recordings of video interviews with victims of alleged sexual abuse from a Manchester video editing firm contracted by the CPS. This may be the case even though the stolen material has apparently been recovered. The Mail reports that

The CPS said it was now demanding an ‘urgent explanation’ of the security arrangements that had been in place

but this in itself points towards a possible prior lack of suitable oversight of the contractual arrangements

Keith Vaz, Chair of the Commons Home Affairs Committee, has expressed surprise that a private firm was involved (which shows either a certain naivety, or disingenuity) but has also said that he will be challenging the Head of the CPS about the security breach when she appears before the committee next month. One suspects the ICO will also be challenging her to explain what arrangements were in place to ensure compliance with the DPA.

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RIPA errors…but also serious data protection breaches?

A circular from the Interception of Communications Commissioner’s Office raises concerns about some public authorities’ data protection compliance

The benighted (although often misrepresented) Regulation of Investigatory Powers Act 2000 (RIPA) had at least the ostensible worthy aim of ensuring that, when public authorities conducted investigations which were intrusive on people’s private lives, those investigations took place in accordance with the law. Thus, under Chapter II of Part 1 of RIPA, authorisations may be granted within an organisation to acquire, or an application made to require a postal or telecommunications operator to disclose, communications data (“communications data”, in the words of the Statutory Code of Practice “embraces the ‘who’, ‘when’ and ‘where’ of a communication but not the content, not what was said or written”). If the acquisition is done in accordance with RIPA, and the Code of Practice, it will in general terms be done lawfully.

The acquisition and disclosure of communications data under RIPA is overseen by the Interception of Communications Commissioner who is appointed pursuant to section 57 RIPA. It is the Commissioner’s role to review the exercise and performance of relevant persons’ functions under the Act. From time to time his office (IOCCO) will also issue circulars, and one such landed on the desks of Senior Responsible Officers of relevant public authorities earlier this month. Laudably, IOCCO has also uploaded it to its website and its contents are worrying not just because they indicate errors in complying with RIPA authorisations and applications, but also with the data protection compliance of the authorities involved. The circular, from the Head of IOCCO, Jo Cavan, states that

in the first six month period of the reporting year (January to June 2014) there have been 195 applicant errors – of which 153 (78%) were, according to the reports submitted to IOCCO, caused by the applicant submitting the wrong communications address. [emphasis in original]

As I say, the provisions of RIPA at least implicitly acknowledge that acquisition and disclosure of communications data will be highly intrusive actions. But failure to ensure that the data acquired is accurate means that such intrusion has taken place into the private communications of people totally uninvolved in the investigations being undertaken, as the circular highlights

In all cases the applicant error led to communications data being acquired relating to members of the public who had no connection to the investigation or operation being undertaken

but most chillingly

one of these errors led to executive action being taken against a member of the public who had no connection to the investigation being undertaken

Although no indication is given of what the deceptively bland phrase “executive action” actually consisted of.

The fourth principle in Schedule One of the Data Protection Act 1998 (DPA) requires in terms that data controllers take reasonable steps to ensure the accuracy of personal data they process. Failure to comply with that obligation potentially gives rise to civil claims by data subjects, and, in qualifying serious cases, civil enforcement action by the Information Commissioner’s Office, which can serve monetary penalty notices to a maximum of £500,000.  Moreover, the seventh principle in Schedule One of the DPA requires to data controllers to take appropriate technical and organisational measures to safeguard against the unfair or unlawful processing of personal data. IOCCO’s Circular notes that

It is unsatisfactory to note that the telephone numbers / email addresses / Internet Protocol (IP) addresses were, in the vast majority of cases, derived from records available to the applicant in electronic form and as such could have been electronically copied into the application to ensure accuracy. SROs must develop, implement and robustly enforce measures to require applicants to electronically copy communications addresses into applications when the source is in electronic form (for example forensic reports relating to mobile phones, call data records etc). Communications addresses acquired from other sources must be properly checked to reduce the scope for error. It is not acceptable for public authorities to simply state that applicants have been reminded to double check communications addresses to prevent recurrence

This points to possible failure by the authorities in question to take appropriate DPA principle 7 measures.

IOCCO’s enforcement powers in this regard are limited, although the circular notes that the Commissioner shall, where appropriate, notify affected individuals of the existence and role of the Investigatory Powers Tribunal (IPT) . However, complainants would not be restricted simply to complaining to the IPT – the Surveillance Roadmap (“a shared approach to the regulation of surveillance in the United Kingdom”) agreed between the UK’s surfeit of privacy commissioners, allows for the possibility of someone aggrieved by intrusive obtaining of communications data making a complaint to the Information Commissioner’s Office (ICO) as well as the IPT. It does state that “the ICO does not have the necessary [sic] powers to investigate breaches of RIPA and will only make a decision as to whether it is likely or unlikely that an organisation has complied with the DPA”, but it does strike me that a complaint to the ICO is a lot easier to make than an application to the IPT. Or, alternatively, a civil claim (under section 13 DPA) through the courts on the basis that the public authority in question had contravened its obligations opens up the possibility of a damages award. This might be a more attractive option for an complainant, because, although damages are a remedy available in the IPT (under s67(7) RIPA), it is notable that there is no right of appeal from an IPT decision (s67(8)).

One last point – the Surveillance Roadmap tries to draw lines separating the functions of the various commissioners. This is sensible, and aims to avoid overlap and duplication of functions, but one wonders if the ICO might be interested in looking at the DPA compliance of the authorities who erred so notably in the cases seen by IOCCO.

 

 

 

 

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Dancing to the beat of the Google drum

With rather wearying predictability, certain parts of the media are in uproar about the removal by Google of search results linking to a positive article about a young artist. Roy Greenslade, in the Guardian, writes

The Worcester News has been the victim of one of the more bizarre examples of the European court’s so-called “right to be forgotten” ruling.

The paper was told by Google that it was removing from its search archive an article in praise of a young artist.

Yes, you read that correctly. A positive story published five years ago about Dan Roach, who was then on the verge of gaining a degree in fine art, had to be taken down.

Although no one knows who made the request to Google, it is presumed to be the artist himself, as he had previously asked the paper itself to remove the piece,  on the basis that he felt it didn’t reflect the work he is producing now. But there is a bigger story here, and in my opinion it’s one of Google selling itself as an unwilling censor, and of media uncritically buying it.

Firstly, Google had no obligation to remove the results. The judgment of the Court of Justice of the European Union (CJEU) in the Google Spain case was controversial, and problematic, but its effect was certainly not to oblige a search engine to respond to a takedown request without considering whether it has a legal obligation to do so. What it did say was that, although as a rule data subjects’ rights to removal override the interest of the general public having access to the information delivered by a search query, there may be particular reasons why the balance might go the other way.

Furthermore, even if the artist here had a legitimate complaint that the results constituted his personal data, and that the continued processing by Google was inadequate, inaccurate, excessive or continuing for longer than was necessary (none of which, I would submit, would actually be likely to apply in this case), Google could simply refuse to comply with the takedown request. At that point, the requester would be left with two options: sue, or complain to the Information Commissioner’s Office (ICO). The former option is an interesting one (and I wonder if any such small claims cases will be brought in the County Court) but I think in the majority of cases people will be likely to take the latter. However, if the ICO receives a complaint, it appears that the first thing it is likely to do is refer the person to the publisher of the information in question. In a blog post in August the Deputy Commissioner David Smith said

We’re about to update our website* with advice on when an individual should complain to us, what they need to tell us and how, in some cases, they might be better off pursuing their complaint with the original publisher and not just the search engine [emphasis added]

This is in line with their new approach to handling complaints by data subjects – which is effectively telling them to go off and resolve it with the data controller in the first place.

Even if the complaint does make its way to an ICO case officer, what that officer will be doing is assessing – pursuant to section 42 of the Data Protection Act 1998 (DPA) – “whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of [the DPA]“. What the ICO is not doing is determining an appeal. An assessment of “compliance not likely” is no more than that – it does not oblige the data controller to take action (although it may be accompanied by recommendations). An assessment of “compliance likely”, moreover, leaves an aggrieved data subject with no other option but to attempt to sue the data controller. Contrary to what Information Commissioner Christopher Graham said at the recent Rewriting History debate, there is no right of appeal to the Information Tribunal in these circumstances.

Of course the ICO could, in addition to making a “compliance not likely” assessment, serve Google with an enforcement notice under section 42 DPA requiring them to remove the results. An enforcement notice does have proper legal force, and it is a criminal offence not comply with one. But they are rare creatures. If the ICO does ever serve one on Google things will get interesting, but let’s not hold our breath.

So, simply refusing to take down the results would, certainly in the short term, cause Google no trouble, nor attract any sanction.

Secondly (sorry, that was a long “firstly”) Google appear to have notified the paper of the takedown, in the same way they notified various journalists of takedowns of their pieces back in June this year (with, again, the predictable result that the journalists were outraged, and republicised the apparently taken down information). The ICO has identified that this practice by Google may in itself constitute unfair and unlawful processing: David Smith says

We can certainly see an argument for informing publishers that a link to their content has been taken down. However, in some cases, informing the publisher has led to the complained about information being republished, while in other cases results that are taken down will link to content that is far from legitimate – for example to hate sites of various sorts. In cases like that we can see why informing the content publisher could exacerbate an already difficult situation and could in itself have a very detrimental effect on the complainant’s privacy

Google is a huge and hugely rich organisation. It appears to be trying to chip away at the CJEU judgment by making it look ridiculous. And in doing so it is cleverly using the media to help portray it as a passive actor – victim, along with the media, of censorship. As I’ve written previously, Google is anything but passive – it has algorithms which prioritise certain results above others, for commercial reasons, and it will readily remove search results upon receipt of claims that the links are to copyright material. Those elements of the media who are expressing outrage at the spurious removal of links might take a moment to reflect whether Google is really as interested in freedom of expression as they are, and, if not, why it is acting as it is.

 

 
*At the time of writing this advice does not appear to have been made available on the ICO website.

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