Category Archives: Data Protection

June 7, 2013 · 12:26 pm

Transparency and the ICO

It is axiomatic that, under the Freedom of Information Act 2000 (FOIA), a requester is unlikely to know precisely what the information requested consists of. This means that a requester is at a (natural and fair) disadvantage if he or she wishes to challenge a refusal. How to argue, for instance, that the public interest favours disclosure of information, if you don’t know what the information is?

A requester will often be reliant, therefore, on the Information Commissioner (ICO), as independent regulator, or the judicial system, thoroughly to interrogate a public authority’s basis for non-disclosure.

Last year I made a FOIA request to the ICO’s office itself for copies of all Undertakings (not currently on their website) agreed by the ICO and data controllers following investigation of serious breaches of the Data Protection Act 1998.

The ICO kindly disclosed to me a large number of Undertakings, but withheld three, citing the exemption at section 22 of FOIA. This section provides an exemption to the general FOIA obligation to disclose information, if the information is held, at the time of the request, with a view to its publication at some future date (whether determined or not). Furthermore it must be reasonable in all the circumstances that the information should be withheld from disclosure until that future date. Section 22 is a qualified exemption, and, therefore, subject to the application of a public interest test. I was told by the ICO that the Undertakings

were not published at the time due to a risk of prejudice, in one case to a criminal trial and in the others to commercial interests. In light of your request we have revisited these considerations and find that they are still relevant

I’m a reasonable chap, and accepted that the ICO was well-placed to determine that the public interest did not favour disclosure. However, I thought they might be able to disclose the identities of the data controllers involved. So I made a FOIA request for that information.

This was also refused. I was told that one of the data controllers was News Group Newspapers and the Undertaking was

in connection with a cyber-security attack perpetrated against NGN for which criminal proceedings are ongoing. As we have previously indicated, the Undertaking will be published once the proceedings have been concluded

This was the case relating to a criminal trial, and it has now been published.

I was told though that the names of the other two data controllers were still exempt under section 22, as, even though the ICO accepted my argument

that prejudice is “unlikely to occur simply by disclosing the identity of the data controllers”, having consulted with the organisations involved, I am satisfied that there is a possibility that the release of even the identities could potentially damage the commercial interests of the Data Controllers

Well, after I waited a while, and then made a further FOI request, the names and Undertakings have now been disclosed. And I fail to see what the fuss was about: they related to some issues with residual data on legacy systems. I also fail completely to understand how, in any conceivable way, disclosure of the names of the Councils involved could have caused prejudice to their commercial interests, and I’d invite anyone else to explain to me how it could. If I am right, the argument that it was reasonable in all the circumstances that the information should be withheld from disclosure until a later date, and, indeed, the argument that the public interest favoured maintaining the section 22 exemption falls away.

I could, of course, have appealed at the time, but the point is that I did not know what information was being suppressed, or why. I trusted the ICO to apply the law properly.

It is interesting to consider this matter of “trust” in light of an important recent Upper Tribunal (UT) case. Although that case was concerned with the use of “closed material” and “closed proceedings” in FOIA cases in the First-tier Tribunal (FTT) some points are arguably of general application to public authorities. One strikes me in particular

The other side of the coin concerning the application of the FOIA exemptions is of course that the requester may want to challenge the reasons and evidence which are advanced to establish them and thereby show that the requested information should be provided to him or her pursuant to FOIA…This competing right and interest within the FOIA scheme is founded on the right of access to information held by public authorities that is given by FOIA.  So it is one of the starting points for the need for a decision-making process to weigh competing rights and interests [emphasis added]

I would argue (knowing now what I didn’t know then) that as one of the prime reasons for DPA Undertakings is to draw attention to serious breaches of the DPA (see ICO Guidance: Communicating Enforcement Activities) withholding this information under section 22 potentially is seen to undermine the regulatory functions of the ICO. I struggle to understand how the refusal to disclose the Undertakings, let alone the mere identities of the recipients, shows proper weighing of competing rights and interests.

One a final note, the guidance above also says

We will not risk damage to the reputation of the ICO by agreeing with an organisation that we won’t publicise our action or that we will give advance warning

I’m not sure how to square that with what I was told last year that

the Undertakings were signed on the understanding that they would not be publicised in the usual manner

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May 28, 2013 · 6:58 pm

Pondlife: privacy obligations and privacy rights

Anonymous has threatened the EDL with a campaign of exposure and disruption. However, disclosure – and onward dissemination – of private information, such as lists of members of a group can be unlawful under data protection (and other) laws. Failure to take adequate steps to prevent such disclosure can also put such groups at risk of breaching the same laws.

In 2010 the law firm ACS:Law was victim of a concerted campaign to disrupt its activities through denial of service attacks (DDOS) and other means. The “Hacktivist” network Anonymous claimed responsibility for the attacks, stating that they were in response to the firm’s aggressive litigation tactics in claims against alleged file-sharers. For a short time after the firm’s website was restored after the DDOS attacks a file was exposed which contained large amounts of personal data of individuals who were suspected of file-sharing. This file was rapidly spread by Anonymous activists, and others.

As a result of this data security breach the Information Commissioner (IC) subsequently served a civil Monetary Penalty Notice of £1000 on Andrew Crossley, who operated the firm. At the time the IC said that

Were it not for the fact that ACS:Law has ceased trading so that Mr Crossley now has limited means, a monetary penalty of £200,000 would have been imposed, given the severity of the breach.

The IC found that the firm’s website security was utterly inadequate and constituted a serious breach of the seventh principle of the Data Protection Act 1998 (DPA).

The security measures ACS:Law had in place were barely fit for purpose in a person’s home environment, let alone a business handling such sensitive details

This point has current relevance because “Anonymous” have announced a campaign to disrupt the activities of the English Defence League. The Guardian reports that

A list of what were said to be mobile phone numbers for senior named EDL figures were published online on Tuesday evening along with addresses of what were said to be donors to the far-right group

Twitter accounts also re-published leaked details of hundreds of names and addresses linked to the EDL which were circulated on the web in 2010 after hackers broke in to one of the organisation’s websites
I confess I wasn’t aware of the 2010 hack. One wonders if the IC investigated this at the time. Nonetheless, any further hacks which reveal personal data of members and donors raise potential issues of liability for the EDL under the DPA, for the same reason that ACS:Law attracted enforcement action.
 
I found it notable at the time of the ACS:Law case that there was a lack of action or censure for the many people who happily publicised and distributed the file in question, thus exacerbating the already serious breach. It seemed to me, and still does, that those who originally downloaded the file and made it freely available, and those who continued to publicise it and make it available, were arguably guilty of an offence under section 55 of DPA, which provides that disclosing personal data knowingly or recklessly, without the consent of the data controller can be an offence.
 
The chances of an offence being committed are even more pronounced when concerted efforts are made to hack into a website. The offence under s55 DPA remains (through lack of a ministerial Order implementing the custodial provisions) only punishable by a maximum £5000 fine. However, other potential offences are enaged, including those under the Computer Misuse Act 1990, which are punishable by a maximum of five years’ imprisonment.
 
Anonymous have their reasons for the campaign, and they are perhaps difficult to argue against. But concerted efforts to gather and disclose private information raise worrying issues, which should not be avoided simply because of who the intended victims are.
 
None of this is to be seen as defending, or sympathising with, the views of the EDL, who are scum. But even scum have rights. Furthermore, it might be worth bearing in mind that when a list of apparent members of the BNP was leaked in 2009 – an incident which led to the prosecution of an individual under the DPA (at the sentencing of whom the judge said that he was obliged to impose a “fine…so low as to be ridiculous”) – there were strong indications that a number of people were wrongly named as members. Lists can be dangerous things, and I can think of few things more unpleasant than being wrongly associated with groups like this.

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May 26, 2013 · 10:27 am

Medical records databreach – what will result?

Today’s Sunday Mirror reports that thousands of confidential medical records have apparently been stored outdoors in a car park in an industrial estate for months. The paper alleges that

DHL Healthcare, which provides services for more than 100 NHS trusts, left out documents reportedly containing patients’ names, addresses and details of their medical conditions.

The paperwork is also believed to contain security “key codes” that enable DHL ambulance drivers to open the front doors of patients’ homes so they can be taken to hospital for treatments such as dialysis and chemotherapy.

Although the article doesn’t mention it, I am sure the Information Commissioner (IC) will take a keen interest in this.

Of particular interest is the fact that this apparent breach is said to have involved an organisation, DHL Healthcare, which doesn’t provide healthcare services itself. According to its website it provides “logistics services for the healthcare industry”. I also note that it provides a records management service. It seems almost certain that it acts under contract to NHS bodies. As such, in the terminology of the Data Protection Act 1998 (DPA), it is a “data processor” and an NHS body which instructs it is a “data controller”. Under the DPA, only the latter – the controller – is responsible for complying with the Act, and only the latter is liable to attract enforcement action for serious breaches of the DPA.

The seventh DPA data protection principle places an obligation on a data controller to ensure that

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.

and where

Where processing of personal data is carried out by a data processor on behalf of a data controller, the data controller is not to be regarded as complying with the seventh principle unless—

(a)the processing is carried out under a contract—

(i)which is made or evidenced in writing, and

(ii)under which the data processor is to act only on instructions from the data controller, and

(b)the contract requires the data processor to comply with obligations equivalent to those imposed on a data controller by the seventh principle.

This means that where an NHS Trust contracts with – say – a records management service, it must enter into a written contract which demands that the contractor must do nothing other than what the contract says, and must have robust data security measures in place. If the contract does not say that then the NHS body is prima facie in breach of the DPA, and liable for any serious breach which might occur.

Thus, in 2012, Brighton and Sussex University Hospitals NHS Trust was “fined” (in reality, served with a s55A DPA Civil Monetary Penalty Notice) £325,000 by the IC after hard drives containing sensitive medical data ended up for sale on the internet. The IC said that the Trust

failed to choose a data processor providing sufficient guarantees in respect of the technical and organisational security measures governing the processing to be carried out, and take reasonable steps to ensure compliance with those measures.
Further, the processing was not carried out under a contract between the Trust and HIS (whether made or evidenced in writing) under which the data processor was to act only on instructions from the data controller, and which required HIS to comply with obligations equivalent to those imposed on a data controller by the Seventh Data Protection Principle

Any investigation into this latest incident will likely involve assessment of the nature of the contracts in place, and the extent to which data controllers contracting with DHL Healthcare took reasonable steps to ensure compliance by the contractor. However, it appears to be the case, under current law, that if the IC determines there was a robust contract in place, and the data controller took all reaosnable steps to ensure compliance, no enforcement action can ensue. This seems slightly strange, but the DPA (which gives effect to the European Data Protection Directive) does not allow the IC to take action against the contractor. (Of course the other party to the contract could take civil action of its own, but this would almost certainly be only for breach of contract).

The draft European Data Protection Regulation seeks to deal with this possible gap in the law. Draft Article 26 (read with Articles 24 and 30) provides that

If a processor processes personal data other than as instructed by the controller, the processor shall be considered to be a controller in respect of that processing and shall be subject to the rules on joint controllers

This apparently sensible and minor amendment might, though, have major implications for contractual arrangements to process data. If a data processor becomes (jointly) liable for breaches it is likely to assess risk in a much different way when entering into a contract. “Traditional” data controllers need to be alive to the potential financial implications of this.

One final note. Under current law, a data controller is

a person who determines the purposes for which and the manner in which any personal data are, or are to be, processed

Could it be argued that, even now, when a contractor diverges from the terms of a contract, and decides to process data in a different way, they are in fact determining the purposes in a way which could potentially make them a controller? I would be interested to know if this has ever been argued.

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May 20, 2013 · 12:23 pm

There’s nothing like consistency…

Two contradictory decisions from the ICO as to whether disclosure of the names of councillors in the Local Government Pension Scheme is lawful might leave FOI officers – and requesters – scratching their heads

Remember those “Spot the Difference” competitions?

In 2010 the Information Commissioner’s Office (ICO) issued a Decision Notice concerning a request made to Buckinghamshire County Council under the Freedom of Information Act 2000 (FOIA). The request was for the names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed with BCC that

the withheld information is personal data relating to these councillors

But disagreed that section 40(2) and (3) of FOIA exempted the information from disclosure, rejecting an argument that the councillors would not have had a reasonable expectation of disclosure of the information:

the Commissioner has not found any evidence to support a view that disclosing the requested information would be likely to cause unnecessary or unjustified damage or distress to the individuals concerned

and

The Commissioner is satisfied the requested information relates primarily to the councillors’ public lives and does not intrude significantly on their private and family lives.

Consequently BCC was

to provide the complainant with the list of names of the ten councillors who were members of the LGPS

Compare and contrast with a Decision Notice issued recently relating to a FOIA request to Central Bedfordshire Council (CBC). The request was for names of councillors who had chosen to join the Local Government Pension Scheme (LGPS). The ICO agreed that

information regarding the details of an individual’s pension is personal data

And agreed with CBC that section 40(2) and (3) of FOIA exempted the information from disclosure, saying

individuals will have a reasonable expectation that information about their pension, and their decision whether or not to take one, will not be routinely disclosed

and that the councillors’

expectations of privacy with regard to their pensions are still objectively reasonable as it relates far more to their private lives than their professional lives

Consequently CBC was correct

to rely on section 40(2) to withhold…the requested information

A few questions arise: are BCC councillors entitled to bring a complaint against their council for unfair processing? if so, would BCC have a defence that they complied with a legal notice from the statutory regulator? Is local government “lagging behind best practice in other parts of the public sector” (para 20 of FS50233989) or not? Which Decision Notice should other councils follow when they get similar requests? And, finally, did the ICO even look at the earlier decision when it issued the second?

 

DISCLAIMER: I have a professional connection to one of the public authorities involved.

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May 17, 2013 · 2:58 pm

Damages under s13 Data Protection Act – an Opportunity Lost?

A concession of an issue by the defendant in Halliday v Creation Consumer Finance means the law is still unclear as to whether nominal damages trigger compensation for distress arising from a contravention of the Data Protection Act

Section 13(1) of the Data Protection Act (DPA) provides a right to compensation for a data subject who has suffered damage by reason of any contravention by a data controller of any of the requirements of the Act.  The domestic authorities are clear that “damage” in this sense consists of pecuniary loss. Thus, section 13(1) is a “gateway” to a further right of compensation under section 13(2)(a), for distress. The right to distress compensation cannot be triggered unless section 13(1) damage has been suffered.

This point was addressed in 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 in the latter saying

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

In the case at first instance  the judge had found against Mr Johnson in his claim that a failure to renew his membership was caused by unfair processing of his personal data. However, if the first head of claim had succeeded, pecuniary damages in the sum of £10.50, to cover the cost of a breakfast (don’t ask) would have been owed, and

the price of that breakfast [would have represented] his gateway to a right to recover compensation for distress under section 13(2)(a)

This point, already largely hypothetical, fell away on appeal, because the Court held 

The Judge was not entitled to find that this, the only item of pecuniary damage that survived, was attributable to damage for which the MDU was responsible

The judgment in a recent case, Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333 had been anticipated as possibly clarifying whether nominal, as opposed to substantial, damages under section 13(1), could suffice to be a gateway to distress compensation, and, indeed, whether the DPA effectively transposes the requirements of the European Data Protection Directive to which it gives effect. The case concerned errors by the defendant regarding disputed payments, which affected the claimant’s credit record. As Robin Hopkins said in a recent post on the Panopticon blog, after reports of the ex tempore judgment surfaced,

In Halliday…nominal damages (of £1) were awarded, thereby apparently fulfilling the ‘damage’ requirement and opening the door for a ‘distress’ award (though note that Panopticon has not yet seen a full judgment from the Court of Appeal in this case, so do not take this as a definitive account). If that approach becomes standard practice, claimants may be in much stronger positions for seeking damages.

Now that the full judgment has been made available, it can be seen that Mr Halliday did indeed succeed in using the nominal £1 damages as a gateway to £750 compensation for distress, but only because the defendant conceded the point:

this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998

So it appears we must continue to wait for fuller consideration of the meaning of the word “damage” in both the Directive and section 13 DPA.

UPDATE: Robin Hopkins has blogged on this case at the Panopticon blog. As he says – and as I may have omitted – “the judgment is not without its notable points”.

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April 16, 2013 · 12:15 pm

Police, poems and FOI

In which I am inspired into literary expression by a rather bizarre ICO decision notice saying that a poem sent by a senior police officer on his mobile device is exempt from disclosure under the “personal data” provisions of the Freedom of Information Act

Mr Plod once sent friends a rhyme
Which was rumoured to be out of line
When a request was lodged
To see what it was
His bosses politely declined

Chris Graham agreed with the force
Saying “It’s personal data because
He’s easy to spot
From the words that we’ve got:
It’s exempt from disclosure, of course!”

A Tribunal may have to decide later
– As the statutory arbitrator –
If it’s rather perverse
To suggest that a verse
Can possibly be personal data.

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March 19, 2013 · 8:34 am

Don’t Panic about the Royal Charter. Panic Now!

Bloggers shouldn’t panic about the proposed Royal Charter, unless they’re already panicking about the current law.

Imagine that a local citizen blogger – let’s call her Mrs B, who is a member of a local church group – decides to let others know, by way of a website, some news and information about the group. She includes information for those about to be confirmed into the church as well as extraneous, light-hearted stuff about her fellow parishioners, including the fact that one of them has a broken leg. Now imagine that a complaint by one of the fellow parishioners that this website is intrusive is upheld and Mrs B is found to have breached domestic law.

The coercive power of the state being brought against a mere blogger would be, you might imagine, unacceptable. You might imagine that any such domestic law, in a country which is a signatory to the European Convention on Human Rights, would be held to be in breach of the free-expression rights under Article 10 of the same.

This sort of outcome, you might say, would surely be unimaginable even under the proposed regulatory scheme by Royal Charter agreed in principle by the main party leaders on 18 March.

But, as anyone who knows about data protection law will tell you, exactly this happened in 2003 in Sweden, when poor Mrs Bodil Lindqvist was prosecuted and convicted under national Swedish legislation on data protection and privacy. On appeal to the European Court of Justice her actions were held to have been the “processing” of “personal data” (and, in the case of the person with the injured leg, of the higher-category “sensitive personal data”) and thus those actions engaged Article 3(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data which is given domestic effect in Sweden by the law under which she was convicted. The same Directive is, of course, given domestic effect in the UK by the Data Protection Act 1998 (DPA).

The response to the proposed Royal Charter was heated, and many people noticed that the interpretative provisions in Schedule 4 implied the regulation of web content in general (if said content was “news-related material”), thus potentially bringing the “blogosphere” and various social media activities into jurisdiction. This has caused much protest. For instance Cory Doctorow wrote

In a nutshell, then: if you press a button labelled “publish” or “submit” or “tweet” while in the UK, these rules as written will treat you as a newspaper proprietor, and make you vulnerable to an arbitration procedure where the complainer pays nothing, but you have to pay to defend yourself, and that will potentially have the power to fine you, force you to censor your posts, and force you to print “corrections” and “apologies” in a manner that the regulator will get to specify.

But the irony is, that is effectively exactly the position as it currently stands under data protection law. If you publish or submit or tweet in the UK information which relates to an identifiable individual you are “processing” “personal data”. The “data subject” can object if they feel the processing is in breach of the very broad obligations under the DPA. This right of objection is free (by means of a complaint to the Information Commissioner’s Office (ICO)). The ICO can impose a monetary penalty notice (a “fine”) up to £500,000 for serious breaches of the DPA, and can issue enforcement notices requiring certain actions (such as removal of data, corrections, apologies etc) and a breach of an enforcement notice is potentially a criminal offence.

As it is, the ICO is highly unlikely even to accept jurisdiction over a complaint like this. He will say it is covered by the exemption for processing if it is “only for the purposes of that individual’s personal, family or household affairs (including recreational purposes)”. He will say this despite the fact that this position is legally and logically unsound, and was heavily criticised in the High Court, where, in response to a statement from the ICO that

The situation would clearly be impossible were the Information Commissioner to be expected to rule on what it is acceptable for one individual to say about…another individual. This is not what my office is established to do. This is particularly the case where other legal remedies are available – for example, the law of libel or incitement.

Mr Justice Tugendhat said

 I do not find it possible to reconcile the views on the law expressed in the Commissioner’s letter with authoritative statements of the law. The DPA does envisage that the Information Commissioner should consider what it is acceptable for one individual to say about another, because the First Data Protection Principle requires that data should be processed lawfully. The authoritative statements of the law are to be found not only in the cases cited in this judgment (including para 16 above), but also by the Court of Appeal in Campbell v MGN Ltd [2002] EWCA Civ 1373 [2003] QB 633 paras [72] to [138], and in other cases. As Patten J made clear in Murray, where the DPA applies, if processing is unlawful by reason of it breaching the general law of confidentiality (and thus any other general law) there will be a contravention of the First Data Protection Principle within the meaning of s.40(1), and a breach of s.4(4) of the DPA…The fact that a claimant may have claims under common law torts, or under HRA s.6, does not preclude there being a claim under, or other means of enforcement of, the DPA.

The ICO will decline jurisdiction because, in reality, he does not have the resources to regulate the internet in its broadest sense, and nor does he have the inclination to do so. And I strongly suspect that this would also be the position of any regulator established under the Royal Charter.

I’m not normally one for complacency, and I actually think that the fact that the coercive power of the state potentially applies in this manner to activities such as blogging and tweeting is problematic (not wrong per se, note, but problematic). But the fact is that, firstly, the same coercive power already applies, to the extent that such activities engage, for instance, defamation law, or contempt of court, or incitement laws, and secondly – and despite the High Court criticism – no one seems to be particularly exercised by the fact that the current DPA regulator is able to ignore the activities of the blogosphere, so I doubt that the social and legal will exists to regulate these activities. I hope I’m not wrong.

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March 7, 2013 · 2:13 pm

Google Streetview and “Incidental” Processing

Someone I follow on twitter recently posted a link from Google Streetview of the interior of a pub, in which he could identify himself and a friend having a quiet pint. I must confess this addition of building interiors to the Streetview portfolio had passed me by. It appears that businesses can sign-up to have “Google Trusted Photographers and Trusted Agencies” take photographs of their premises, which are uploaded to the web and linked to Streetview locations.

When it was launched Streetview caused some concern in privacy circles, and this was prior to, and separate from, the concerns caused by the discovery that huge quantities of wifi payload data had been gathered and retained during the process of capture of streetview data. These more general concerns were partly due to the fact that, in the process of taking images of streets the Google cameras were also capturing images of individuals. Data protection law is engaged when data are being processed which relate to a living individual, who can identified from the data. To mitigate against the obvious potential privacy intrusions from Streetview, Google used blurring technology to obscure faces (and vehicle number plates). In its 2009 response to Privacy International’s complaint about the then new service the Information Commissioner’s Office said

blurring someone’s face is not guaranteed to take that image outside the definition of personal data. Even with a face completely removed, it will still be entirely likely that a person would recognise themselves or someone close to them. However, what the blurring does is greatly reduce the likelihood that lots of people would be able to identify individuals whose image has been captured. In light of this, our analysis of whether and to what extent Streetview caused data protection concerns placed a great deal of emphasis on the fact that at its core, this product is in effect a series of images of street scenes…the important data protection point is that an individual’s presence in a particular image is entirely incidental to the purpose for capturing the image as a whole. (emphasis added)

One might have problems with that approach (data protection law does not talk in terms of “incidental” processing of personal data) but as an exercise in pragmatism it makes sense. However, it seems to me that the “business interiors” function of Streetview takes things a step further. Firstly, these are not now just “images of street scenes”, and secondly, it is at least arguable that an individual’s presence in, for instance, an image of an interior of a pub, is not “entirely incidental” to the image’s purpose.

Google informs the business owner that “it would be your responsibility to notify your employees and customers that the photo shoot is taking place” but that “Google may use these images in other products and services in new ways that will make your business information more useful and accessible to users”. It seems likely to me therefore that, to the extent that personal data is being processed in the publishing of these images, Google and the business owner are potentially both data controllers (with consequent responsibilities and liabilities under European law).

It would be interesting to know if the Information Commissioner’s assessment of this processing would be different given that a factor he previously placed a “great deal of emphasis on” (the fact that Streetview was then “just images of street scenes”) no longer applies.

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February 21, 2013 · 12:59 pm

We still have judgment here

Mr Justice Tugendhat makes very interesting observations about reserved judgments and open justice,  in a judgment on whether a defendant is in breach of prior undertakings relating to tawdry publications about the parents of Madeline McCann:

The decision not to identify in a reserved judgment a fact or person that has been identified in open court is not a reporting restriction, nor any other derogation from open justice. The hearing of this committal application was in public in the usual way. The decision not to set out everything in a judgment is simply a decision as to how the judge chooses to frame the judgment (¶86)

I have previously written about discussions taking place about the privacy and data protection implications of electronic publication of lists from magistrates’ courts, and I also wrote a thesis (NEVER to see the light of day thank you very much) which attempted in part to deal with the difficulties of anonymisation in court documents. These seem to me to be very urgent, and tremendously difficult, considerations for the subject of open justice in the digital era (the title of the initiative, led by Judith Townend, to “make recommendations for the way judicial information and legal data are communicated in a digital era”).

The judgment continues with Tugendhat J observing that, in previous cases where he has referred to parties by initials in reserved judgments this has sometimes been misinterpreted as his having made an anonymity order. Not true: the proceedings themselves were in open court, but

what happens in court, if not reported at the time, may be ephemeral, and may soon be forgotten and become difficult to recover, whereas a reserved judgment may appear in law reports, or on the internet, indefinitely (¶87)

This is a crucial point. My concern has always been about the permanence of information published on the internet, and the potential for it to be used, and abused, in ways and under jurisdictions, which would make a mockery of, for instance, the Rehabilitation of Offenders Act 1974, and the Data Protection Act 1998.

I haven’t noted the judge’s comments for any particular reason, other than I think they helpfully illustrate some important points, and might provoke some discussion.

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February 20, 2013 · 1:26 pm

Smeaton v Equifax overturned

The Court of Appeal has overturned what had seemed an important, if controversial, judgment on the legal duties owed by Credit Reference Agencies to those about whom they hold records and issue reports.

I blogged in May last year  about a high court claim for damages under section 13 of the Data Protection Act 1998 (DPA). The claimant, Mr Smeaton, successfully argued that, as a result of processing inaccurate data about his credit history, the Credit Reference Agency (CRA) Equifax was in breach of the fourth data protection principle, and that Equifax’s obligations under the DPA as a data controller meant that it owed a duty of care to Smeaton in tort. Accordingly, damages were owed (to be assessed at a later date).

The case has now been comprehensively overturned in the Court of Appeal. Primarily, the appeal succeeded because the judge’s findings on causation (i.e. had the inaccuracy in Mr Smeaton’s credit record led to the detriment pleaded?) were not sustainable. Lord Justice Tomlinson, giving the lead judgment, was highly critical of the judge’s approach

the judge’s conclusion that the breaches of duty which he identified caused Mr Smeaton loss in that they prevented Ability Records from obtaining a loan in and after mid-2006 is in my view not just surprising but seriously aberrant. It is without any reliable foundation and completely unsupported, indeed contradicted, by the only evidence on which the judge could properly rely (¶11)

That effectively dispensed with the claim for damages, but Equifax, clearly concerned about the implications of the original findings regarding a breach of the DPA and consequent breach of a duty of care, asked the Appeal Court to consider these points as well.

Was there a DPA breach?

Tomlinson LJ held that the procedures which obtained at the time of the alleged DPA breach, regarding the annulment (and communication thereof) of bankruptcy orders, had never been the subject of the expression of any concern by either the Information Commissioner or the Insolvency Service. In the first instance the judge had observed that inaccurate personal data could be “particularly damaging”. Tomlinson LJ did not demur, but said that

it is necessary to put this important principle into context and to maintain a sense of proportion. In the context of lending, arrangements have been put in place to ensure that an applicant for credit should not suffer permanent damage as a result of inaccurate information appearing on his file (¶59)

Those arrangements are described in guidance both published by or approved by the Information Commissioner, and include the fact that, in the event of a failed credit application

[the] lender must tell a failed applicant by reference to the data of which CRA an application was declined, if it was, and the failed applicant, like any consumer, has the right to obtain a copy of his file from a CRA on payment of £2.00

and mistakes can thus be corrected.

Moreover, CRAs must, by reference to the Guide to Credit Scoring 2000, not decline a repeat application “solely on the grounds of having made a previously declined or accepted application to that credit grantor”. This, and other guidance, were inbuilt safeguards against the kind of detriment Mr Smeaton claimed to have suffered. Ultimately

Equifax did take steps to ensure that its bankruptcy data was accurate. It obtained the data from a reliable and authoritative source in the form of the [London] Gazette, it transferred the data accurately onto its data bases from that source and it amended its data immediately upon being made aware that it was inaccurate…the judge was wrong to conclude that Equifax had failed to take reasonable steps to ensure the accuracy of its data (¶81)

Was there a co-extensive duty of care in tort?

Here Tomlinson LJ considered the “traditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty” and held comprehensively that there was not. He agreed with counsel for Equifax’s argument that

(1)It is doubtful whether it was reasonably foreseeable that the recording of incorrect data on Mr Smeaton’s credit reference would cause him any loss…
(2)It would also not be fair, just or reasonable to impose a duty. In particular, imposing a duty owed to members of the public generally would potentially give rise to an indeterminate liability to an indeterminate class…
(3)It would also be otiose given that the DPA provides a detailed code for determining the civil liability of CRAs and other data controllers arising out of the improper processing of data
(4)Parliament has also enacted detailed legislation governing the licensing and operation of CRAs and the correction of inaccurate information contained in a credit file in the CCA 1974. This provides for the possibility of criminal sanctions, but does not create any right to civil damages. In such circumstances it would not be appropriate to extend the law of negligence to cover this territory (¶75)

The third of these seems to make it clear that the courts will be reluctant to allow for a notion of an actionable duty of care on data controller to process personal data fairly and lawfully. (This is in contrast, interestingly, with the situation in Ireland, whereby a statutory provision (section 7 of the Data Protection Act 1988) states that such a duty of care is owed (at least to the extent that “the law does not so provide”)).

My post on the first instance case has been one of the most-read (it’s all relative, of course – there haven’t been that many readers) so I think it only correct to post this update following the Court of Appeal judgment.

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