It is…beyond doubt that the DPA was not designed to deal with the way in which the internet now works
says Tugendhat J in a crucial recently-published judgment (The Law Society & Ors v Kordowski  EWHC 3185 (QB)), in which he lays into the Information Commissioner (IC), albeit in a polite, judgely manner.
The case concerned applications for injunctive relief against Kordowski, the publisher of the “Solicitors from Hell” website. The claims were in defamation, under the Protection of Harassment Act 1997, and the Data Protection Act 1998 (DPA). Unsurprisingly, given the focus of the blog, it is the last I focus on, although one must be aware it was only one of the causes of action discussed.
It transpires that the Chief Executive of the Law Society, on behalf of many solicitors who felt aggrieved by the contents of the website in question (which invited people to “rate” and comment on solicitors, with predictably defamatory results) had complained to the IC that the site was in breach of the provisions of the Data Protection Act 1998 (DPA). On 6 January this year the IC replied, in a three-page letter, apparently saying that the exemption at section 36 of the DPA effectively meant he lacked jurisdiction to determine whether there had been a breach:
The inclusion of the “domestic purposes” exemption in the Data Protection Act (s.36) is intended to balance the individual’s rights to respect for his/her private life with the freedom of expression. These rights are equally important and I am strongly of the view that it is not the purpose of the DPA to regulate an individual right to freedom of expression – even where the individual uses a third party website, rather than his own facilities, to exercise this.
Fellow blogger Tim Turner has already recently criticised the IC’s invoking of s36 to avoid regulating the internet/blogosphere. He will be pleased to see Tugendhat J agreeing with him, in pretty stern and unequivocal language, that using that DPA “domestic purposes exemption” to avoid regulating websites and blogs is not an option open, in general terms, to the IC.
The IC had said in his letter
The situation would clearly be impossible were the Information Commissioner to be expected to rule on what it is acceptable for one individual to say about another be that a solicitor or another individual. This is not what my office is established to do. This is particularly the case where other legal remedies are available – for example, the law of libel or incitement.
The slapdown from Tugendhat J is
I do not find it possible to reconcile the views on the law expressed in the Commissioner’s letter with authoritative statements of the law. The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully. The authoritative statements of the law are to be found not only in the cases cited in this judgment (including para 16 above), but also by the Court of Appeal in Campbell v MGN Ltd  EWCA Civ 1373  QB 633 paras  to , and in other cases. As Patten J made clear in Murray, where the DPA applies, if processing is unlawful by reason of it breaching the general law of confidentiality (and thus any other general law) there will be a contravention of the First Data Protection Principle within the meaning of s.40(1), and a breach of s.4(4) of the DPA. See also Douglas v Hello! Ltd  EWHC 786 (Ch)  3 All ER 996 paras 230-239 and Clift v Slough Borough Council  EWHC 1550 (QB)  4 All ER 756. The fact that a claimant may have claims under common law torts, or under HRA s.6, does not preclude there being a claim under, or other means of enforcement of, the DPA.
This, of course, places the IC in a very difficult situation (actually, according to him, an “impossible” one). In fairness to him, and in fairness to the judge, it is pointed out that IC was not in attendance nor represented in the proceedings, and it might be that he has a killer riposte up his sleeve. If not, he has a problem. Until now he has only had the criticism of mere people like Tim, or me, to lead him to question his approach to s36 and the internet.(Yes, yes, there was also the European Court of Justice, but the Lindqvist judgment was a very long time ago – effectively in pre-history – and therefore easy to sidestep). Now, given that a superior court of record has overruled him, and held that there were multiple breaches of the DPA in this case and that the IC was wrong in his application of the s36 domestic purposes exemption, he may find that his already over-stretched resources will have to cover complaints from people who feel that their rights under DPA have been both engaged, and breached, by other individuals on the Internet. Picking a theoretical example – a complaint from someone who objects to the uploading of a private photo of them to Facebook without their consent.
It also places bloggers, and social media users in general, in a potentially risky position. Tugendhat J distinguishes such internet publication from journalism (as does Hugh Tomlinson QC – who, uncoincidentally, I suspect, acted for the claimants in this case – in two important recent posts on the Inforrm blog). If we non-journalists are potentially subject to the DPA but lack the protection it offers to journalists, we could all find ourselves at risk not just of regulatory action from the IC, but those private actions which can also be brought under the Act.
One would hope that the new draft EC data protection regulation would grapple with “the practical difficulties raised by cases such as the present” but on first viewing I’m not sure it does. Whether the door would be open to the UK legislature to address the problem is a matter for conjecture. In the interim, however, with the publication of this judgment, the IC has some close reading to do.