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
3 responses to “Monitoring of blogs and lawful/unlawful surveillance”
Interesting view on RIPA Jon. What are your thoughts on whether the surveillance was covert within the meaning of RIPA? Section 26(9) states:
“surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place.”
By not telling the author that her blog is being read by them (monitored) is that enough for the Trust to be covert? Is it being done in a way that is “calculated to ensure…”? Or can the Trust argue that surely the author knew that monitoring may be taking place as it was a public blog which anyone can read?
Hi Ibrahim – that’s a good point, and not one I think I’d really addressed. However, I will say a) that the monitoring (or surveillance, if you will) appears to have consisted also of matching blog entries to Sara Ryan’s visits to the ward b) according to Sara the Trust (or rather its Chair) prior to this disclosure by the *CCG* denied that monitoring took place c) again according to Sara, the Trust failed to disclose, in response to a data protection subject access request, that it was processing this data relating to the monitoring, and d) as I mention in the post the Surveillance Commissioners tend towards a view that “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”.
I don’t think this is clear-cut, and yes, you’re right that 26(9) would be in play if the Trust was a relevant authority. But I do think there are questions to be raised about the unannounced collation of information from the monitoring public domain blogs and other information to inform policy decisions, especially in the circumstances which obtained here.
Hi Jon – I have done a detailed blog posts on the RIPA implications of monitoring blogs and social networks which readers may find of interest: