Category Archives: Data Protection

June 15, 2014 · 9:08 pm

Virgin on the ridiculous

UPDATE 15.12.14: I think the comments on this piece take it further, and I do accept (as I did at the time, in fact) that the “password” in question was not likely to relate to customers’ accounts.
END UPDATE.

I got into a rather odd exchange over the weekend with the people running the Virgin Media twitter account. It began when, as is my wont, I was searching for tweets about “data protection” and noticed an exchange in which someone had asked Virgin Media whether their sales people rang customers and asked them to give their passwords. Virgin Media kindly appeared to confirm they did, and that

it’s for security as we can’t make any changes without data protection being passed

I asked for clarification, and this exchange ensued

[ME] Is it true your sales people call customers and ask for their account passwords? If so, are these unsolicited calls?

[VM] Yes this is true, our sales team would call and before entering your account, would need you to pass account security. I understand for your own security purposes why you wouldn’t feel great doing this, i’d be the same. If you give us a call on 150/03454541111 we can get this cleared up. Let me know how you get on

[ME] Thanks. Not a customer. Just interested in what seems like questionable practice being defended under guise of data protection

[VM] We contact our customers if there upgrade is due, or for a heath check on accounts, and a few other instances, but I get where your coming from [sic]

There’s nothing unlawful about this practice, and I assume that the accounts in question are service and not financial ones, but it doesn’t accord with normal industry practice. Moreover, one is warned often enough about the risks of phishing calls asking for account passwords. If a legitimate company requires or encourages its sales staff to do this, it adds to a culture of unnecessary risk. There are better ways of verifying identity, as their social media person seems to accept, when they say “I understand for your own security purposes why you wouldn’t feel great doing this, i’d be the same”.

One thing I’m certain about, though, is that isn’t any part of “passing data protection” (unless they mean bypassing) to make outbound calls and ask for customer passwords.

On a final note, and in admiration of bare-faced cheek, I highlight the end of my exchange with Virgin Media

If you want, as your not a customer, you can check out our brill offers here [removed] maybe we could save you a few pounds?

That’s an offer I most certainly can refuse.

(By the way, as it’s an official Virgin Media account, I’ve taken what I was told on Twitter at face value. If I have misunderstood any of their policies on this I’d be happy to correct).

UPDATE:

Virgin Media’s Twitter account appears to have confirmed to me a) that they do ask for customers’ passwords on outbound sales calls, and b) that they see nothing wrong with it. And rather hilariously, they say that “we can discuss further” if I will “pop a few details” on their web form for social media enquiries. No thanks.

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June 13, 2014 · 12:23 pm

Ticking off Neelie Kroes (sort of)

In which I take issue with the European Commission V-P about what the Consumer Rights Directive says about pre-ticked boxes

I found myself retweeting what I think was a rather misleading message from the Vice-President of the European Commission, Neelie Kroes. Her tweet said

You know those annoying “pre-ticked boxes” on shopping/travel websites? They’re banned in #EU from today http://europa.eu/rapid/press-release_IP-14-655_en.htm#eCommerce

I thought this was very interesting, particularly in light of my recent post about the implying of consent to electronic marketing if people forget to untick such boxes. The EU press release itself does say at one point

Under the new EU rules…consumers can now rely on…A ban on pre-ticked boxes on the internet, as for example when they buy plane tickets

But, it earlier says

The new rules also ban…pre-ticked boxes on websites for charging additional payments (for example when buying plane tickets online)

The emphasis I’ve added in that last quote is crucial. What DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on consumer rights actually proscribes is the contractual binding of a consumer to any payment in addition to the original remuneration agreed on if

the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment

 So, as the press release explains,

When shopping online –for example when buying a plane ticket – you may be offered additional options during the purchase process, such as travel insurance or car rental. These additional services may be offered through so-called pre-ticked boxes. Consumers are currently often forced to untick those boxes if they do not want these extra services. With the new Directive, pre-ticked boxes will be banned across the European Union.

I happen to think that that text should more properly say “With the new Directive, pre-ticked boxes of this sort will be banned across the European Union”.

So, no ban on pre-ticked boxes themselves, just on those which purport to bind a consumer to an additional payment under a contract.

The Directive has been implemented in the UK by  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and associated The Enterprise Act 2002 (Part 8 EU Infringements) Order 2013 the former of which says (at regulation 40)

Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.. There is no express consent (if there would otherwise be) for the purposes of this paragraph if consent is inferred from the consumer not changing a default option (such as a pre-ticked box on a website)

Having said all this, I do think it is interesting that clearly-defined concepts of “express consent” are making their way into European and domestic legislation. And in due course, we may even find that, for instance, electronic marketing will be restrained unless similarly clearly-defined express consent is given. But not just yet.

Update: Ms Kroes kindly replied to me, saying it’s difficult to get a message across in 140 characters. So true.

 

 

 

 

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June 12, 2014 · 8:10 am

Nominal damages give rise to distress compensation under the Data Protection Act – AB v Ministry of Justice

An award of nominal DPA damages in the High Court.

Whether, or in what circumstances, compensation may be awarded to a claimant who shows a contravention by a data controller of any of the requirements of the Data Protection Act 1998 (DPA), is a much-debated issue. It is also, occasionally, litigated. One key aspect is when compensation for distress might be awarded.

Section 13 of the DPA provides, so far as is relevant here, that

(1)An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2)An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a)the individual also suffers damage by reason of the contravention

The general interpretation of this has been that compensation for distress, in the absence of pecuniary damage, is not available. The leading case on this is Johnson v The Medical Defence Union Ltd (2) [2006] EWHC 321 and on appeal Johnson v Medical Defence Union [2007] EWCA Civ 262, with Buxton LJ saying in the latter

section 13 distress damages are only available if damage in the sense of pecuniary loss has been suffered

However in allowing an appeal in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, and directing that the case go to trial, the Court of Appeal was prepared to consider a different view

It seems to us to be at least arguable that the judge [in the first instance] has construed ‘damage’ too narrowly, having regard to the fact that the purpose of the Act was to enact the provisions of the relevant Directive

But that case was ultimately settled before trial, and the issue left undecided.

Clearly, the decision in Johnson is potentially controversial, especially in cases (of which Johnson was not one) where the UK’s obligations under the European Data Protection Directive, and data subjects’ associated rights under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, are taken into account. This much was recognised by Tugendhat J, in giving permisssion to the applicants in Vidal -Hall & Ors v Google Inc [2014] EWHC 13 (QB) to serve on Google Inc out of jurisdiction. He noted (¶83-104) academic statements on the issue, as well as the European Commission’s view that the UK DPA wrongly restricts “[t]he right to compensation for moral damage when personal information is used inappropriately”, and said

This is a controversial question of law in a developing area, and it is desirable that the facts should be found. It would therefore be the better course in the present case that I should not decide this question on this application.

I shall therefore not decide it. However, in case it is of any assistance in the future, my preliminary view of the question is that Mr Tomlinson’s submissions are to be preferred, and so that damage in s.13 does include non-pecuniary damage

This is a fascinating point, and detailed judicial consideration of it would be welcomed (it may also be at issue in the impending case of Steinmetz v Global Witness Ltd) but, in the meantime, a question exists as to whether nominal pecuniary damage opens the door to awards for distress. In Johnson, the cost of a £10.50 breakfast had opened the door, but this was actual (if minor) damage. Last year, the Court of Appeal avoided having to decide the issue when the defendant conceded the point in Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333 (about which I blogged last year). However, in a very recent judgment, AB v Ministry of Justice [2014] EWHC 1847 (QB), which takes some wading through, Mr Justice Baker does appear to have proceeded on the basis that nominal damages do give rise to distress compensation.

The case involves an (anonymous) partner in a firm of solicitors who, as a result of events involving the coroner following his wife’s tragic death, made a series of subject access requests (under the provisions of section 7 DPA). The Ministry of Justice (MoJ) did not, it seems, necessarily handle these well, nor in accordance with their obligations under the DPA, and when it came to remedying these contraventions (which consisted of delayed responses) the judge awarded nominal damages of £1.00, before moving on to award £2250 for distress caused by the delays.

What is not clear from the judgment is to what extent the judge considered the MoJ’s submission that compensation for distress was only available if an individual has also suffered damage. The answer may lie in the fact that, although he awarded nominal damages, the judge accepted that AB had suffered (actual) damage but had “not sought to quantify his time or expense”. Query, therefore, whether this is a case of purely nominal damage.

One hopes that Vidal-Hall and Global Witness give the occasions to determine these matters. One notes, however, the vigour with which both cases are being litigated by the parties: it may be some time before the issue is settled once and for all.

 

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June 6, 2014 · 12:11 pm

Piles of cash for claiming against spammers? I’m not so sure

I am not a lawyer, but I’m pretty certain that most commercial litigation strategies will be along the lines of “don’t waste lots of money fighting a low-value case which sets no precedent”. And I know it is a feature of such litigation that some companies will not even bother defending such cases, calculating that doing so will cost the company much more, with no other gain.

With this in mind, one notes the recent case of Sky News producer Roddy Mansfield. His employer itself reported (in a piece with a sub-heading  “John Lewis is prosecuted…”, which is manifestly not the case – this was a civil matter) that

John Lewis has been ordered to pay damages for sending “spam” emails in a privacy ruling that could open the floodgates for harassed consumers.

Roddy Mansfield, who is a producer for Sky News, brought the case under EU legislation that prohibits businesses from sending marketing emails without consent

The case appears to have been brought under regulation 30 of The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Those regulations, as the title suggests, give effect to the UK’s obligations under the snappily titled Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector. Regulation 30(1) of PECR provides that

A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage

It appears that Mr Mansfield created an account on the John Lewis website, and omitted to “untick” a box which purported to convey his consent to John Lewis sending him marketing emails. It further appears that in the County Court Mr Mansfield successfully argued that the subsequent sending of such emails was in breach of regulation 22(2), which provides in relevant part that

a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent…

Assuming that this accurately reflects what happened, I think Mr Mansfield was probably correct to argue that John Lewis had breached the regulations: the Information Commissioner’s Office (ICO) guidance states that

Some organisations provide pre-ticked opt-in boxes, and rely on the user to untick it if they don’t want to consent. In effect, this is more like an opt-out box, as it assumes consent unless the user clicks the box. A pre-ticked box will not automatically be enough to demonstrate consent, as it will be harder to show that the presence of the tick represents a positive, informed choice by the user

For a detailed exposition of the PECR provisions in play, see Tim Turner’s excellent recent blog post on this same story.

I’ve used the word “appears” quite a bit in this post, because there are various unknowns in this story. One of the main missing pieces of information is the actual amount of damages awarded to Mr Mansfield. Unless (and it is not the case here) exemplary or aggravated damages are available, an award will only act as compensation. It has been said that

The central purpose of a civil law award of damages is to compensate the claimant for the damage, loss or injury he or she has suffered as a result of another’s acts or omissions, and to put the claimant in the same position as he or she would have been but for the injury, loss or damage, so far as this is possible

So I doubt very much whether the award to Mr Mansfield was anything other than a small sum (so the albeit tongue-in-cheek Register reference to a PILE OF CASH is very probably way off the mark) . I have asked him via his twitter account for details, but have had no reply as yet.

Perhaps the most important aspect of this story, though, is the extent to which it indicates the way the courts might interpret the relevant consent provisions of PECR. As this was a case in the County Court it sets no precedent, and, unless someone decides to pay for a transcript of the hearing we’re very unlikely to get any written judgment or law report, but the principles at stake are profound ones, concerning how electronic marketing communications can be lawfully sent, and about what “consent” means in this context.

The issue will not go away, and, although I suspect (referring back to my opening paragraph) that John Lewis chose not to appeal because the costs of doing so would have vastly outweighed the costs of settling the matter by paying the required damages, it would greatly benefit from some proper consideration by a higher court.

And another important aspect of the story is whether behaviours might change as a result. Maybe they have: I see that John Lewis, no doubt aware that others might take up the baton passed on by Mr Mansfield, have quietly amended their “create an account” page, so that the opt-in box is no longer pre-ticked.

jl

UPDATE: 7 June

In a comment below a pseudonymed person suggests that the damages award was indeed tiny – £10 plus £25 costs. It also suggests that John Lewis tried to argue that they were permitted to send the emails by virtue of the “soft opt-in” provisions of regulation 22(3) PECR, perhaps spuriously arguing that Mr Mansfield and they were in negotiations for a sale.

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June 5, 2014 · 4:24 pm

Right now, you are being monitored

This morning, as I was leaving the house for work, I wanted to check the weather forecast so started tapping and swiping away at my newish iPhone to find the weather screen. I was startled to see some text appear which said

Right now, it would take you about 11 minutes to drive to [workplace address]

(It looked a bit like this (not my phone I stress)).

It was correct, it would indeed take me about that long to drive to work at that time, but I was genuinely taken aback. After a bit of research I see that this was a new feature in iOS7, (and, indeed, the weather widget was lost at the same time). Sure enough, I find that my new phone has been logging frequently visited locations, but must have also been logging the fact that I travel between A (home) and B (work) frequently. It is described by Apple as being a way to

Allow your iPhone to learn places you frequently visit in order to provide useful location-related information

I’m not going to argue whether this is a useful service or not, or even whether on general principles it is concerning or not. What I am going to say is that, because I’ve not had much time recently to sit down and learn about my new phone, to customise it in the most privacy-friendly way, I’ve been saddled with a default setting which has captured an extraordinarily accurate dataset about my travel habits without my knowledge. And yes, I know that tracking is a prerequisite of mobile phone functionality, but I would just rather it was, as default, limited to the bare minimum. 

p.s. to turn off this default setting, navigate to Settings/Privacy/Location Services [scroll to very bottom]/System Services/Frequent Locations and set to “off”

 

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May 30, 2014 · 8:46 am

Data Protection in the Court System

The Lord Chief Justice’s welcome call for a modern ICT system for the courts of England and Wales does, at the same time, raise concerns about the data protection compliance of the current systems

If a representative of a public sector data controller, responsible for processing huge amounts of manual and electronic sensitive data (of all categories), were to concede that their systems for handling this data “were recognised as outdated more than 15 years ago” it would – one imagines – raise a few eyebrows in Wilmslow. Outdated systems are, by default, systems which are unlikely to indicate compliance by the relevant data controller with the seventh data protection principle:

Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data

A serious contravention of the obligation to comply with that principle can lead to monetary penalty notices to a maximum sum of £500,000, as many data controllers know to their cost.

But such a concession is just what the Lord Chief Justice of England and Wales appeared to make at the Annual Lecture of the Society of Computers and Law on 20 May in London. In his lecture he referred to

 re-entering information on different systems, using and holding paper files, diaries that are manual and unreliable telephonic and video communications

He spoke of how

Once papers are misfiled they are lost. In a number of parts of the country it is difficult to find people to do the filing at a wage which HMG is prepared to pay

and that

Save for using Outlook, judges have no electronic filing system for their administration. Outside the most senior Judiciary, very little clerical support is available for the judges

 All of this is enough to make most data security and data protection officers have sleepless (and screamful) nights.

In fairness to Lord Thomas, a) he was reflecting his own personal views, and b) his lecture, which laid out the history of how things had got to this state, was admirably aimed at seizing an opportunity to modernise. However, it did make me wonder how the judicial system appears to have largely avoided the steely enforcement glare of the Information Commissioner. I think this is probably, in part, because it is highly complicated when looked at through the lens of the Data Protection Act 1998 (DPA). The DPA distinguishes between data controllers and data processors, with former attracting all the legal obligations and liabilities under the Act. A data controller is, by section 1(1) of the DPA

a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed

Applying this to the situations which obtain in the court system is not an easy task (although it isn’t uniquely difficult – the distinction between data controller and processor is a notoriously complex, and perhaps increasingly artificial, one to establish). It seems to me that, with the sorts of personal data being processed as part of a legal claim or trial before a court, there may be multiple data controllers doing different things with the same or similar data – the parties, their legal representatives, the court staff, and the judiciary are those which immediately come to mind. In such circumstances we are probably talking about data controllers in common (“where data controllers share a pool of personal data, each processing independently of the other”*).

What is certain is that the Judicial Office for England and Wales considers the judiciary to be data controllers at least for some personal data and some acts of processing which take place within the court system. In a document entitled “Judicial Responsibilities and the Data Protection Act 1998” it says that

It is now acknowledged that individual judicial office-holders are data controllers in circumstances in which they determine the purpose for which and the manner in which any personal data is processed. This is so in relation to data processed in the exercise of any judicial functions

And another document “IT and Information Security Guidance for the Judiciary” contains generally sensible advice to judiciary on ICT security, but fine words butter no parsnips, and if the reality, as suggested by the Lord Chief Justice’s lecture (and, indeed, anecdotal evidence I have seen and heard) does not match up to the intentions of that document, then it would point to potentially serious contraventions of the DPA.

In April 2013 the Information Commissioner’s Office published the summary outcome of a data protection audit it had performed – by consent – on HM Courts and Tribunals Service. The audit gave the ICO “reasonable assurance” but one notes that it focused on data protection governance, training, and subject access requests, and did not appear to encompass security. And, for the reasons discussed earlier in this post, HMCTS are only one of the data controllers in play in the court system. In the rather unlikely event that the ICO decided to seek to audit them, would judges pass so easily?

*ICO Data Protection Legal Guidance, page 16

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May 29, 2014 · 4:31 pm

Articles on care.data

I thought I was rather flogging the care.data horse on this blog, so, in the spirit of persistence, I thought why not go and do it somewhere else? The Society of Computers and Law kindly asked me to write a broadly “anti” piece, while asking Martin Hoskins to do a broadly “pro” one. They are here:

Care.data the Cons
Care.data the Pros

I am pleased to announce that Martin and I are still on speaking terms.

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May 29, 2014 · 8:31 am

Data Protection rights of on-the-run prisoners

Does data protection law prevent the disclosure under the FOI Act of the identities of prisoners who have absconded?

The Mail reported recently that the Ministry of Justice (MoJ) had refused to disclose, in response to a request made under the Freedom of Information Act 2000 (FOIA), a list of prisoners who have absconded from open prisons. The MoJ are reported to have claimed that

under Freedom of Information laws, there is a blanket ban on releasing the criminals’ identities because it is their own ‘personal data’

but the Justice Secretary Chris Grayling was reported to be

furious with the decision, which was taken without his knowledge. He is now intending to over-rule his own department and publish a list of all on-the-run criminals within days

and sure enough a few days later the Mail was able to report, in its usual style, the names of the majority of the prisoners after Grayling

intervened to end the ‘nonsense’ of their names being kept secret…[and stated] that data protection laws will not be used to protect them, arguing: “They are wanted men and should be treated as such. That’s why on my watch we will not hold back their names, unless the police ask us not to for operational reasons”

Regarding the initial article, and in fairness to the MoJ, the Mail does not publish either the FOI request, nor the response itself, so it is difficult to know whether the latter was more nuanced than the article suggests (I suspect it was), but is it correct that disclosure of this information was prevented by data protection law?

More information was given in a follow-up piece on the Press Gazette website which cited a spokeswoman from the MoJ’s National Offender Management Service’s Security Group:

She said the department was “not obliged” to provide information that would contravene the Data Protection Act, adding, “for example, if disclosure is unfair”, which also meant that it did not have to consider “whether or not it would be in the public interest” to release the information

This is technically correct: FOIA provides an exemption to disclosure if the information requested constitutes personal data and disclosure would be in contravention of the Data Protection Act 1998 (DPA), there is no “public interest test” under this exemption, and whether disclosure is unfair is a key question. The reference to “fairness” relates to the first data protection principle in Schedule One to the DPA. This provides 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

As the Information Commissioner’s Office says (page 13 of this guidance) “fairness can be a difficult concept to define”, and assessing it in a FOIA context will involve whether the information is “sensitive personal data” (it is in this instance – section 2 of the DPA explains in terms that data about prison sentences is included in this category); what the possible consequences of disclosure are on the individual; what the individual’s reasonable expectations are; and the balance of the interests of the public against the rights of the individual (this last example shows that there is, in effect, if not in actuality, there is a kind of public interest test for the FOIA personal data exemption).

With this in mind, would it really have been “unfair” to disclose the identities of on-the-run prisoners? The consequences of disclosure might be recapture (although I concede there might also be exposure to risk of attack by members of the public), but does an absconder really have a reasonable expectation that their identity will not be disclosed? I would argue they have quite the opposite – a reasonable expectation (even if they don’t desire it) that their identity will be disclosed. And the balance of public interest against the absconders’ rights surely tips in favour of the former – society has a compelling interest in recapturing absconders.

But this doesn’t quite take us to the point of permitting disclosure of this information under FOIA. If we look back to the wording of the first data protection principle we note that a condition in both Schedule Two (and, this being sensitive personal data) Schedule Three must be met. And here we note that most of those conditions require that the processing (and FOIA disclosure would be a form of processing) must be “necessary”. The particular conditions which seem to me most to be engaged are the identically worded 5(a) in Schedule Two, and 7(1)(a) in Schedule Three:

The processing is necessary for the administration of justice

What “necessary” means, in the context of a balance between the FOIA access rights and the privacy rights of individual has been given much judicial analysis, notably in the MPs’ expenses case (Corporate Officer of the House of Commons v The Information Commissioner & Ors [2008] EWHC 1084 (Admin)), where it was said that “necessary”

should reflect the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely that there should be a pressing social need and that the interference was both proportionate as to means and fairly balanced as to ends

In this way “necessary” in the DPA, accords with the test in Article 8 of the European Convention on Human Rights, which provides that any interference with the right to respect for private and family life etc. must be

necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others [emphasis added]

Deciding whether there was a “pressing social need” to disclose, under FOIA, the absconders’ identities to the Mail was not straightforward, and no doubt the civil servants at MoJ erred on the side of caution. I can imagine them thinking that, if it was necessary in a democratic society to publish these names, they already would be published as routine, and the fact that they hadn’t meant that it would not be proportionate to disclose under FOIA (I happen to think that would be wrong, but that’s not strictly relevant). But this is an interesting case in which the subsequent intervention by the Justice Secretary created the justification which perhaps did not exist when the FOIA request was being handled: after all, if the Justice Secretary feels so strongly about publishing the names, then doing so must be necessary in the interests of public safety etc.

As it was, five of the names (out of eighteen) were not disclosed, no doubt for the police operational reasons that were alluded to by Grayling. And this, of course, points to the most likely, and the most strong, exemptions to disclosure of this sort of information – those relating to likely prejudice to law enforcement (section 31 FOIA).

 p.s. I am given to understand that the Information Commissioner’s Office may be contacting the MoJ to discuss this issue.

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May 28, 2014 · 8:37 am

Letting the data protection genie out of the bottle

Ireland police tweet a picture of a distinctive car they pulled over…social media speculates as to the owner…police warn of data protection implications…

 Recital 26 to the 1995 European data protection Directive explains that

the principles of protection must apply to any information concerning an identified or identifiable person [and] to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person

The Directive was transposed into Irish domestic law by amendments to the Data Protection Act 1988 which defines personal data as

data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller

What this means is that, as the Ireland Data Protection Commissioner says

There are different ways in which an individual can be considered ‘identifiable’.  A person’s full name is an obvious likely identifier.  But a person can also be identifiable from other information, including a combination of identification elements

With that in mind it was instructive to note a brief exchange on Twitter this morning involving the An Garda Síochána official account which is set up to provide “information on traffic and major events”. The exchange began with a tweet containing a photograph of a car pulled over for having “overly tinted windows”, and this was followed by a couple of tweets from another twitter user  alluding to the identity of the driver of the car. Finally, the Garda tweeted

Please do not post name, data protection issues, we want to raise awareness, we do not want to cause embarrassment

Some of the tweets have since been deleted, but @anyabike helpfully took a screengrab, which I have edited to remove any identifying information (except the picture of the car, which is still on the Garda timeline):

image

This is interesting (well, to me at least) because the concerns from the Garda about data protection should perhaps more properly have been addressed at themselves, for tweeting the picture in the first place. I have previously written about the practice of emanations of the state using social media to “shame” people, or to pursue campaigns and the fact that this almost inevitably engages data protection and human rights laws. The fact that the Garda published a picture from which an individual could be identified (either from that data or from that data in conjunction with other information in their possession) meant that they were, by definition, processing personal data (uploading a picture to the internet is certainly “processing”). And it is at least arguable that, in doing so, they should have been alive to the possibility of third parties being able to identify the individual, which would go to the heart of whether the initial processing was “fair” (section 2(1)(a) Data Protection Act 1988). Any complaint arising out of identification would perhaps be made not only about the person naming the individual, but also, and more strongly, about the public authority who initiated the identification.

This is not a huge issue, and I’m not saying the Garda were wrong to tweet the picture, merely that it is some kind of irony that, having done so, they then seek to restrain speculation as to the identity of the car owner: on social media, once the data protection genie is out of the bottle, it can be very hard to get him back in.

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April 25, 2014 · 1:28 pm

The slings and arrows of FOI

“…investigation by and even adverse comment from the Ombudsman is one of the slings and arrows of local government misfortune with which broad shouldered officials have to cope…” (Feld v London Borough of Barnet [2004] EWCA Civ 1307)

Ombudsmen loom over the actions of many public authorities. Particularly, the NHS and local authorities are subject to the scrutiny of respectively, the Parliamentary and Health Service Ombudsman (PHSO), and the Local Government Ombudsman (LGO). The Ombudsmen themselves must have broad shoulders, subject as they are to the oversight of both parliament, and, because they are public authorities subject to the Freedom of Information Act 2000 (FOIA), the Information Commissioner’s Office (ICO).

The PHSO was recently asked, under FOIA, for the email address and telephone number of the Ombudsman herself, Dame Julie Mellor. The request was refused, on the basis of the exemption at section 40(2) of FOIA – namely that the requested information was Dame Julie’s personal data, and disclosure would breach the first data protection principle in the Data Protection Act 1998. This refusal has now been upheld by the ICO, in a decision notice which explains that

the data requested relates to a living individual who may be identified from that data and that [therefore] it constitutes personal data

That much is uncontroversial: a person’s email address and telephone number will generally be held to be their personal data, even in a professional context, providing that they can be identified from that data. However, the ICO goes on to say

the Commissioner considers that the Ombudsman would have a reasonable expectation that her email address and direct telephone number would not be placed into the public domain by disclosure under the FOIA…

…The Commissioner is aware that the requested email address and telephone number are personal to the Ombudsman but are professional contact details. He considers that their disclosure is unlikely to cause the Ombudsman distress on a personal level. However the Commissioner is satisfied that disclosure would disrupt the running of the organisation and it is apparent that the consequences would have a negative impact upon the PHSO

This seems to conflate two quite separate issues – personal privacy, and organisational impact. As far as I can understand it the argument is that, because this is personal data, and because disclosure would disrupt the running of the organisation, disclosure would not be “fair”, in line with the requirements of the first data protection principle. But, as the ICO’s own guidance on disclosure of personal data under FOIA explains (paragraph 44), the consequences to be taken into account are those to the data subject, not to their organisation, or a third party.

If disclosure of information would disrupt the running of a public authority, there are other, more appropriate FOIA exemptions which might apply. Specifically, section 36(2)(c), for situations where disclosure would prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

But even then I struggle to see how disclosure of such innocuous information would really cause sufficient prejudice to warrant keeping this information secret – shouldn’t the Ombudsman be able to implement systems to deal with a possible increase in emails and calls if the email address and phone number were made public? Isn’t this sort of potential irritation one of the slings and arrows of administrative misfortune with which broad shouldered officials have to cope?

(As a footnote to this piece, neither the section 40(2), nor the section 36(2)(c) are going to carry much weight when the information is readily available online already. I will not link to it, because I’m a cautious soul, but Dame Julie’s email address, at least, has been published on the internet as part of a document created by her, and hosted by a reputable academic institution.)

 

 

 

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