Do Home Office tweets of people arrested on suspicion of committing immigration offences engage data protection law?
The recent sordid campaign by the Home Office to publicise their “crackdown on illegal immigration” involved the tweeting of pictures of people apparently arrested in connection with immigration offences. I’m loath to post links because any further publicity risks undermining my point in this piece, but suffice to say that two pictures in particular were posted, one of a man being escorted (police officers at either side of him, holding his arms) from what look like retail premises, and one of a man being led by other officers into a cage in the back of a van. In both cases, the person’s face has been blurred by pixelation. There have been suggestions that the broader aspects of the campaign (disgracefully, vans have been deployed displaying advertisements saying “In the UK illegally? Go home or face arrest“) might be unlawful for breach of the Public Sector Equality Duty, and some have argued that to use the hashtag #immigrationoffenders to accompany pictures of people only suspected of crime might be to prejudge a trial, and could even constitute contempt of court. However, I would argue that the tweets also engage, and potentially breach, data protection law.
For the sake of this argument I will work on the presumption that, because the images of their faces have been obscured no third party can recognise the individuals concerned (I think this is actually probably wrong – potential identifying features, such as location and clothing are still displayed, and it is quite likely that friends, relative, colleagues could identify them). However, this does not mean that the images are outwith the Data Protection Act 1998 (DPA) and the European Data Protection Directive 95/46/EC to which it gives effect. The former defines personal data as
data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller [emphasis added]
In this instance the Home Office (or its agents) must itself know who the people in the images are (they will have had sufficient identifying information in order to effect an arrest) so, in their hands, the images constitute the personal data of the people in them. As the Information Commissioner’s Office (ICO) explains
It is important to remember that the same piece of data may be personal data in one party’s hands while it may not be personal data in another party’s hands…data may not be personal data in the hands of one data controller…but the same data may be personal data in the hands of another data controller…depending on the purpose of the processing and the potential impact of the processing on individuals
So the taking, retaining and publishing of images of people whose identities are obscured but who can be identified by the data controller will constitute the processing of personal data by that data controller. Consequently, the legal obligations for fair and lawful processing apply: section 4(4) of the DPA imposes a duty on a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller. Lord Hoffman explained this, in the leading FOI (and DPA) case on identification
As the definitions in section 1(1) DPA make clear, disclosure is only one of the ways in which information or data may be processed by the data controller. The duty in section 4(4) is all embracing. He must comply with the data protection principles in relation to all “personal data” with respect to which he is the data controller and to everything that falls within the scope of the word “processing”. The primary focus of the definition of that expression is on him and on everything that he does with the information. He cannot exclude personal data from the duty to comply with the data protection principles simply by editing the data so that, if the edited part were to be disclosed to a third party, the third party would not find it possible from that part alone without the assistance of other information to identify a living individual. Paragraph (b) of the definition of “personal data” prevents this. It requires account to be taken of other information which is in, or is likely to come into, the possession of the data controller. Common Services Agency v Scottish Information Commissioner (Scotland)  UKHL 47
So the Home Office cannot merely edit the data (by pixelation) and thus exclude it from the duty to process it in accordance with the data protection principles: these images are personal data. Moreover, they will come under the subset known as sensitive personal data, because they consist of information as to the commission or alleged commission by the data subject of any offence (they might also fall into this subset because they show the racial or ethnic origin of the data subject, but this is less certain).
The first data protection principle requires that
Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless(a) at least one of the conditions in Schedule 2 is met, and(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
- The individual who the sensitive personal data is about has given explicit consent to the processing.
- The processing is necessary so that you can comply with employment law.
- The processing is necessary to protect the vital interests of: – the individual (in a case where the individual’s consent cannot be given or reasonably obtained), or- another person (in a case where the individual’s consent has been unreasonably withheld).
- The processing is carried out by a not-for-profit organisation and does not involve disclosing personal data to a third party, unless the individual consents. Extra limitations apply to this condition.
- The individual has deliberately made the information public.
- The processing is necessary in relation to legal proceedings; for obtaining legal advice; or otherwise for establishing, exercising or defending legal rights.
- The processing is necessary for administering justice, or for exercising statutory or governmental functions.
- The processing is necessary for medical purposes, and is undertaken by a health professional or by someone who is subject to an equivalent duty of confidentiality.
- The processing is necessary for monitoring equality of opportunity, and is carried out with appropriate safeguards for the rights of individuals.
It will be noted that the two conditions emphasised by me in italics might be thought to apply, but one notes the word “necessary”. In no way were these tweets “necessary” for the purposes to which those conditions relate. By contrast, when authorities publish photographs of wanted criminals, the necessity test will normally be made out. It is, I suppose, just possible that the data subjects gave their explicit consent to the tweets, but that’s vanishingly unlikely. (A question does arise as to what conditions permit the processing by the police of pixelated images of potential offenders in programmes such as “Police, Camera, Action” and “Motorway Cops”: it may be that this has never been challenged, but it may also be that the data controller is in fact the film company, who might be protected by the exemption from much of the DPA if the processing of data is for journalistic purposes).
(I would observe, in passing, that many customary practices to do with publication of information about crimes or suspicion of criminal behaviour are potentially in breach of these provisions of the DPA if they are construed strictly. Although there is the journalistic exemption mentioned above, those to whom that exemption arguably does not apply (bloggers, tweeters, police, other public authorities) are at risk of breach if they, for instance, publish identifying information about people who have criminal convictions or are suspected of having committed a crime. This area of the law, and its implications for open justice, have not, I think, been fully played out yet. For discussions about it see my post and others linked here.)
If no Schedule 3 condition can be met, the processing will not be in accordance with the first data protection principle, and the data controller will be in breach of section 4(4) of the DPA. What flows? Well, probably very little – the data subjects have a right to serve a notice (under section 10 of the DPA) requiring the cessation of processing which is causing or likely to cause substantial unwarranted damage or distress. Additionally, they have a right either to bring a civil claim for damages (very difficult to show) or to complain to the ICO. However, data subjects like this are not necessarily going to want to assert their rights in a strident way. The ICO himself could intervene – he has the power to take enforcement action if he is satisfied a data controller has contravened or is contravening the data protection principles (and, much to his credit, he has recently issued notices against a Council which was requiring taxi drviers to instal CCTV/audio recording facilities in all cabs, and against a Police force which was operating a “ring of steel” ANPR network). It appears though that the Home Office twitter account has gone quiet (it hasn’t tweeted in several days). Perhaps there have been second thoughts not just about the legality, but also the morality, of the campaign. I am always the optimist.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.