In its generally sensible report on Social Media and Criminal Offences the House of Lords’ Communications Committee dealt with the subject of “Revenge Porn” (defined as “the electronic publication or distribution of sexually explicit material (principally images) of one or both of the couple, the material having originally been provided consensually for private use” which seems to me worryingly to miss a key factor – that the publication or distribution will be done with harmful intent). The committee considered what criminal offences might be enaged by this hateful practice, but also observed (¶41) that
a private remedy is already available to the victim. Images of people are covered by the Data Protection Act 1988 (as “personal data”), and so is information about people which is derived from images. Images of a person count as “sensitive personal data” under the Act if they relate to “sexual life”. Under the Act, a data subject may require a data controller not to process the data in a manner that is “causing or is likely to cause substantial damage or substantial distress to him or to another”.
This is all true, but the next bit is not
The Information Commissioner may award compensation to a person so affected
The Information Commissioner (IC) has no such powers, and one wonders from where the committee got this impression (maybe they mistook the IC’s enforcement powers with the powers of the Local Government Ombudsman to make recommendations (such as payment of compensation)). In circumstances where someone wishes to complain about the processing of their personal data their only direct right (regarding the IC) is to ask him (pursuant to section 42) to assess whether the data controller’s processing was likely to have complied with its obligations under the Data Protection Act 1998 (DPA). All the substantive rights given to data subjects under the DPA (such as access to data, rectification, ceasing of processing, compensation etc) are enforceable only by the data subject through the courts. Moreover, in the case of “revenge porn” cases, they would involve the data subject requesting the data controller (who in most cases will be the person who has uploaded the images/content in question) to desist. This could clearly be a course of action fraught with difficulties.
The Committee goes on to point to another civil remedy – “An individual may also apply to the High Court for a privacy injunction to prevent or stop the publication of material relating to a person’s sexual life” – but observes (¶44) that
We are concerned that the latter remedy is available only to those who can afford access to the High Court. It would be desirable to provide a proportionately more accessible route to judicial intervention
Whilst remedies under the DPA are available through the County Court (or Sheriff’s Court in Scotland), rather than the High Court, this still involves expenditure, especially if the case is not amenable to the small claims track, and also involves potential exposure to costs in the event that the claim is unsuccessful.
Furthermore, in the event that the IC were asked to consider a complaint about “revenge porn”, it might be born in mind that he is reluctant to rule on matters regarding publication of private information on the internet. Section 36 of the DPA provides an exemption to the Act where the processing is only for “domestic purposes”. The Committee correctly says (¶41)
Personal data “processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes)” are exempt from this provision but the European Court of Justice has determined that posting material on the internet is not part of one’s “personal, family or household affairs”
And the Committee cites in support of this the Court of Justice of the European Union’s judgment in the case of Lindqvist. But the IC has traditionally been reluctant fully to grapple with the implications of Lindqvist, and, as I have noted previously, its guidance Social networking and online forums – when does the DPA apply?, which says
the ‘domestic purposes’ exemption…will apply whenever an individual uses an online forum purely for domestic purposes
is manifestly at odds with the CJEU’s ruling.
I would greatly hope that, if asked to consider the legality of the posting of “revenge porn”, the IC would not decline jurisdiction on the basis of the section 36 exemption, but his position on section 36 is problematic when it comes to regulation and enforcement of social media.
It is rather to be regretted that the Lords’ Committee was not better informed on these particular aspects of its report.