Short answer: probably not, under the current ICO regime. But the fact that PECR are now enforced under the Data Protection Act 2018, rather than the 1998 Act, makes it in principle much easier for fines for cookie contraventions to happen.
By me, on the Mishcon de Reya website:
https://www.mishcon.com/news/unlawful-cookies-a-new-avenue-for-the-ico-to-issue-fines
Given that Chiltern Railways’ passenger franchise contract with the Department for Transport terminates next year, with plans for public ownership to take place this summer, one doubts that a recent decision by the Information Commissioner’s Office, to the effect that CR is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR), will be subject to an appeal.
It’s an interesting decision in any event. CR has been operating under a franchise since 1996 – by far the longest standing such agreement involving an operator still in private hands. Nonetheless, the ICO, drawing heavily on a previous decision by the Scottish Information Commissioner in respect of Abellio Scotrail (the ICO refers to “Abelli” – just one of multiple typos and infelicities in the decision notice) has determined that the specific nature of the franchise agreement vests the government with sufficient control such as to make CR “under the control” of a government department, for the purposes of regulation 2(2)(d) of the EIR, and, as CR conceded, it is “providing a public service relating to the environment based on the nature of rail travel in England and Wales and also the environmental obligations set out in the [franchise agreement]”.
This was despite the fact that the agreement itself forbids CR from responding to any request for information under the EIR (or the Freedom of Information Act) and requires it to pass any such request to the DfT. However, as the ICO correctly points out, whether a person is an EIR public authority must be determined on the law, as applied to the facts, and the person cannot contract themselves out of a statutory obligation.
In a few years’ time the era of national rail privatisation will largely have passed, at least in terms of passenger services. My instinct is that the ICO is correct, but, unfortunately, it is not a particularly detailed and well argued decision. As I mention above, I suspect the chances of an appeal are low, which is perhaps a shame, as we might have had the chance to see the points argued out more fully.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
An interesting aspect of domestic law-making is what I think of as the “invisible provisions”. Here is an example which finally made it off the statute books recently.
If, prior to the last week, you went to the Data Protection Act 1998 page on legislation dot gov dot uk, and opened the “latest version”, you would get the words:
Act repealed (except s. 62, Sch. 15 paras. 13, 15, 16, 18, 19) (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 44 (with ss. 117, 209, 210, Sch. 20 paras. 2-9, 17-25, 27-46, 53, 54, 58); S.I. 2018/625, reg. 2(1)(g)
Straightforward, then? It’s all been repealed (except for some minor provisions dealing with consumer credit and interpretation of Northern Ireland access to medical records law). And “repealed” means, “no longer in force”, yes? Well, not necessarily.
Because, what you wouldn’t see anywhere on the legislation pages for the 1998 Act, is paragraph 58 of Schedule 20 to the Data Protection Act 2018 (the Act that repealed the 1998 Act), where you will see “The repeal of a provision of the 1998 Act does not affect its operation for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003”.
So, even though the enforcement provisions of the 1998 Act were repealed, that repeal did not affect their operation for the purposes of enforcing PECR. They remained in effect even though they were repealed.
The commencement of section 115 of the Data (Use and Access) Act 2025 finally takes PECR enforcement away from the 1998 Act.
There are myriad examples of this. Take the Freedom of Information Act 2000. Nothing in its own provisions would suggest that its enforcement provisions also apply to the Environmental Information Regulations 2004. To understand that point, you have to refer to the Regulations themselves, which say “The enforcement and appeals provisions of the Act shall apply for the purposes of these Regulations as they apply for the purposes of the Act”.
How is one meant to know if an invisible provision is affecting a statute or other instrument? The simple answer is, you will only know if you know, or if you undertake sufficiently diligent research. Some have access to expensive legal research tools, but that’s not a luxury open to all.
All I can say is that it is a potential pitfall to be aware of, for anyone advising on the law.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
I’ve written for the Mishcon de Reya website on the commencement on 5 February of the majority of the data protection and eprivacy provisions of the Data (Use and Access) Act 2025:
https://www.mishcon.com/news/data-protection-and-electronic-privacy-reform-whats-hot-and-whats-not
I spoke to my old friend Ibrahim Hasan recently for his new Act Now Training New Guardians of Data Podcast.
It was good to talk about my route into the information rights practice law and my current role, but the conversation ranges widely, and goes into: what sort of work a non-lawyer like me gets involved in at a law firm; whether young professionals need to or should qualify as solicitors in order to develop a career in information law; some of the specialisms and the history of Mishcon de Reya LLP; and developments of data protection in the age of AI.
Ibrahim is a great interviewer. I hate listening to myself, but I do feel quite strongly about some of the things we discuss, and some of it might be useful to those seeking a career in the field.
Filed under Uncategorized
This is a helpful short Court of Appeal judgment on the appropriate forum for a data protection of relatively low value and limited complexity (spoiler: it’s the County Court, folks).
The claimant had originally incorrectly issued his claim as a High Court media and communications claim in the Cardiff District Registry (if data protection claims are to be issued in the High Court, they must be issued in the King’s Bench Division at the Royal Courts of Justice). The judge in the High Court in Cardiff transferred the claim to the County Court but his order arguably contained insufficient reasons, and did not explain that either party could apply to have it set aside or varied (as required by CPR 3.3(5)(b). The claimant tried to make representations, by way of an email, as to why the High Court was the appropriate forum, but this was rejected on the basis that it had been filed in the wrong court. By that stage, the transfer to the County Court had taken effect. Accordingly, the matters arising could only be determined by way of appeal.
In its determination, the CoA found that the case (involving disclosure, in separate proceedings, of medical information by a court security guard to an usher and a solicitor for a third party) did not appear to involve any factual or legal complexity, and the claimed sum of £30,000 was clearly within the ambit of the County Court.
(I interject here to observe that, on the brief facts as recorded in the judgment, there might have been some legal complexity – it seems likely that the disclosure would have been made orally by the security guard, so was there “processing” involved?)
Wysokinski v OCS Security Ltd [2026] EWCA Civ 26
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under Data Protection, Data Protection Act 2018, judgments, UK GDPR
The Soil Association Ltd, is a company limited by guarantee and a not-for-profit registered charity. It is not a public authority for the purposes of the Freedom of Information Act 2000 (FOIA), nor, I think, has anyone proposed that it is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR). Yet the Information Commissioner’s Office, in a decision now upheld by the Information Tribunal, has determined that a subsidiary company of the Soil Association – SA Certification Limited – is a public authority for the purposes of the EIR. I think this is probably the correct position, and the judgment of the Tribunal is helpful in explaining why.
A body is a public authority for the purposes of FOIA primarily by way of designation or ownership (if the body is listed in Schedule One of FOIA, or designated by Order, or is wholly owned by one or more other public authorities, then it falls under the regime). The EIR are different: a body is determined to be an EIR public authority if it is a FOIA one, but it might also be one by virtue of what it does or is empowered to do. Under regulation 2(2)(c) if the body is a “natural or legal [person] having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person [who is a public authority]” then it will be a public authority for the purposes of the EIR.
The case law has established that one of the core tests for this is whether the body has been vested with “special powers” of a public nature, “beyond those which result from the normal rules applicable in relations between persons governed by private law’” (C-297/12 Fish Legal v Information Commissioner).
SA Certification Ltd is an accredited certification body for the delivery of certification under a number of regulations and standards, and is designated by DEFRA as a “control body” for the purposes of its “control system” for the labelling of organic products. This, held the Tribunal, confers a special power on SA Certification to certify as organic and to suspend or terminate certification, and this was sufficient to render it a public authority for the purposes of the EIR.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
For those interested in the general question of what is a “publicly owned company” for the purposes of sections 3 and 6 of the Freedom of Information Act 2000 (FOIA), and the specific question of whether the Russell Group is a public authority for the purposes of the FOIA, the Information Tribunal judgment in Farfan v Information Commissioner & Anor [2026] UKFTT 48 (GRC) will make fascinating reading. For the remaining 69.2 million people in the UK, it will be impenetrable.
A company will be a publicly owned company for the purposes of section 3(1)(b) of FOIA if all of its members are themselves public authorities listed in schedule 1 of FOIA.
So, in short, the answer to the second question is “no”, because a) 22 of the 24 members of the Russell Group are university institutions, not the governing bodies of those institutions (and it is the latter which are listed in schedule 1), b) in any case, even if the Tribunal had decided that there was no distinction between the university institutions and their governing bodies, the remaining two members of the Russell Group are the Universities of Glasgow and Edinburgh, and they are not listed in schedule 1 of FOIA (rather, they are public authorities for the purposes of the Freedom of Information (Scotland) Act 2002).
Get reading, you crazy FOIA (and FOISA) nerds.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
If anyone who deals with data subject access requests, or disclosure exercises in general, wants to read a horror story, they should look at the recent judgment in Forsters LLP v Uddin [2025] EWHC 3255 (KB).
This was an application for an interim injunction for breach of confidence, seeking delivery up by the defendant of confidential and privileged documents. Forsters, a law firm, act for Mr and Mrs Alloatti, who are in a dispute with their neighbour, Mr Uddin. No doubt in an attempt to advance his case, Mr Uddin made a DSAR directly to Forsters. But instead of disclosing Mr Uddin’s personal data to him, Forsters disclosed the entire contents of the file containing information responsive to a systems search for the name “Uddin”. This resulted not only in the disclosure of personal data of people unconnected to the dispute, but also in disclosure of around 95% (3,000+ pages) of the Alloatti client file, much of it confidential and privileged.
Unsurprisingly, Forsters were successful in their application. This was a very clear case of “obvious mistake” (see Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780). And
where a party to litigation discloses documents to the opposing party which are confidential and privileged and the court is satisfied that it is a case of ‘obvious mistake’, which was either known to or ought to have been known to the receiving party, the Court will intervene by injunction to, so far as possible, put the parties back into the position they would have been had the error not occurred. This will usually involve granting an injunction that requires the recipient to deliver up the documents, to destroy any copies he has made of them and which restrains him from making any use of the information contained in the documents.
Further proof that this was a mistake lay in the fact that Mr Uddin, on receiving the disclosure, immediately notified Forsters of the breaches of confidence and GDPR. Although he later sought to row back on this in order to retain and use the information in his dispute with the Alloattis, his argument that the disclosure was lawful as a DSAR response was doomed.
One argument that found greater favour with the judge was that the “erroneous disclosure to him has undermined the confidentiality and privilege in the information he has seen”. But although the judge accepted that Mr Uddin could not “un-know” some of what he had seen he held that
Nonetheless, the court can help the Claimant to regain control over the 3,300 documents themselves and over the way in which information from those documents is deployed in the two claims. In this way, the court can remedy most of the mischief which this inadvertent disclosure has caused
Accordingly, in addition to delivery up and deletion, he was injuncted from using any of the documents, or information from them, in the underlying claim or in a separate claim in harassment against two Forsters employees.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under Breach of confidence, Data Protection, judgments, subject access
[reposted from my LinkedIn Account]
I’ve been known to criticise First-tier Tribunal (FTT) judgments in the freedom of information jurisdiction. By contrast, this one is superb.
In it, the FTT dismantle the argument (and the decision notice) of the Information Commissioner’s Office that Bolton NHS Foundation Trust were entitled to “neither confirm nor deny” (NCND) holding reviews, including a review by PWC, into the Trust’s governance and management. The PWC review was the subject of an article in the Health Service Journal, and the requester was the journalist, Lawrence Dunhill.
Firstly, the FTT noted that the ICO “case begins with an elementary error of fact. It treats the Trust as having given an NCND response to the entirety of the Request when it did no such thing” (the Trust had only applied NCND in respect of the request for a PWC report, but had confirmed it held other reviews). Oddly, the Trust, in its submissions for the appeal, simply ignored this error (the FTT chose not to speculate on “whether that omission was accidental or tactical”).
Secondly, and notably, the FTT found a fundamental error of law in the ICO’s approach (and, by implication, in its guidance) to NCND in the context of personal data. Section 2(3)(fa) of FOIA provides that section 40(2) is an absolute exemption (therefore not subject to a public interest test). But section 2(3) does not include section 40(5B) (the personal data NCND provision) in the list of absolute exemptions. As far as I know, the ICO has always taken the view, however, that it is an absolute exemption – certainly its current guidance says this).
That approach, held the FTT, is “simply wrong…the exemption under FOIA, s40(5B)(a)(i) is qualified and the public interest balancing test applies”. And but for that error, they said, the ICO might have reached a different conclusion.
As it was, the FTT held that the legitimate interests balancing test under Article 6(1)(f) of the UK GDPR was sufficient to determine the issue: merely confirming or denying whether the PWC review was held would not cause unwarranted prejudice to a named individual when balanced against the requester’s legitimate interests.
It will be interesting to see if the ICO appeal this. Given the strength of the criticism it would perhaps be bold to do so, but it might be that the only alternative will be to have to rewrite their guidance on s40(5), and rethink their long-held view on it.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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