Tag Archives: DPA

April 11, 2025 · 5:03 am

Retaining data for journalistic purposes?

This is a quite extraordinary data protection story, by Jamie Roberton and Amelia Jenne of Channel 4 News , involving a mother of a woman who died in suspicious circumstances.

It appears that a “Victims’ Right to Review” exercise was undertaken by Gloucestershire Police, at the request of the family of Danielle Charters-Christie, who was found dead inside the caravan that she shared with her partner – who had been accused of domestic abuse – in Gloucestershire on 26 February 2021.

Officers then physically handed a 74-page document to Danielle’s mother, and the contents of it were subsequently reported by Channel 4 News. But, now, the police say that the Review report was “inadvertently released”, are demanding that Danielle’s mother destroy it, and have referred her apparent refusal to do so to the Information Commissioner’s Office as a potential offence under s170(3) of the Data Protection Act 2018.

That provision creates an offence of “knowingly,…after obtaining personal data, [retaining] it without the consent of the person who was the controller in relation to the personal data when it was obtained”.

But here’s a thing: it is a defence, under s170(3)(c) for a person charged with the offence to show that they acted (and here, the retention of the data would be the “action”) for the purposes of journalism, with a view to the publication by a person of any journalistic material, and in the reasonable belief that in the particular circumstances the retaining was justified as being in the public interest.

The ICO is tasked as a prosecutor for various data protection offences, including the one at s170 DPA. No doubt whoever at the ICO is handed this file will be having close regard to whether this statutory defence would apply, but will also, in line with the ICO’s duty as a prosecutor, to consider evidential factors, but also whether a prosecution would be in the public interest.

At the same time, of course, the ICO has civil enforcement powers, and might well be considering what were the circumstances under which the police, as a controller, wrongly disclosed personal data in such apparently serious circumstances.

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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March 11, 2025 · 6:04 am

Why is the ICO so quiet about prosecutions?

Not infrequently, I get contacted (personally and professionally) by individuals who are concerned that their personal data has been compromised in circumstances that may constitute the criminal offence of “obtaining” or “retaining”, under section 170 of the Data Protection Act 2018.

In many cases, there is not much I can bring to the table. If an offence has been committed then this is a matter for the prosecutor. Normally, for data protection offences, this is the Information Commissioner’s Office.

But what strikes me is that there appears to be no information on the ICO website for anyone who wants to report an alleged or potential offence. Their “For the public” pages don’t cover the scenario, and all of the data protection complaints information there is predicated on the assumption that the individual will be complaining about the data controller’s compliance (whereas, in a section 170 offence, the controller is more of the status of “victim”).

In fact, the best I can find is one brief reference (at page 61) of a lengthy guide to the DPA 2018, aimed at “organisations and individuals who are already familiar with data protection law”, and which doesn’t even actually explain that the offences described can be prosecuted by the ICO.

Dr David Erdos has recently highlighted both the low number of ICO prosecutions, and the rather slapdash way in which the ICO appears to be handling information about them. But the section 170 provisions are criminal ones for a reason: they will sometimes involve the most distressing and serious interferences with people’s data protection and privacy rights.

Surely the ICO should pay more attention to such incidents, and assist concerned data subjects (or others) who might want to report potential offences?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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March 8, 2025 · 6:31 am

Can a data subject inspect withheld information in court proceedings?

When a controller, in response to a subject access request, has withheld personal data on the grounds of an exemption or exemptions, the data subject can apply to the court for a compliance order, under section 167 of the Data Protection Act 2018. That application will be determined by a judge who must determine whether the personal data was properly withheld or not. But general rules in adversarial proceedings do not permit one side and the judge to have access to material when the other side does not. So can the claimant and his/her lawyers therefore have access to the withheld information? Of course not – you all say – that would be absurd. However, the picture is not quite as clear as one might think.

Section 15(2) of the Data Protection Act 1998 specifically dealt with this issue: it said that the information should “be made available for [the judge’s] own inspection but shall not, pending the determination of that question in the applicant’s favour, require the information sought by the applicant to be disclosed to him or his representatives”.

But no such provision is contained in the equivalent sections of the 2018 Act. That appears to have been a drafting error.

The issue came up in X -v- The Transcription Agency LLP [2024] 1 WLR 33, and the court there held that

it would defeat the purpose of the legislation if a person challenging the application of an exemption were to be given sight of the material for the purpose of advancing his or her arguments…It would bring about a situation in which a party seeking personal data “would have obtained the very thing which the hearing was designed to decide”

As a result, I imagine, of the X case, Parliament moved to address the lacuna in the law: the Data Protection and Digital Information Bill contained a clause which would have given the court the express power contained in section 15(2) of the 1998 Act. That Bill was, of course, dropped just before the 2024 General Election, but the Data (Use and Access) Bill, now speeding through the Commons, contains something similar, at clause 103.

And so it was that the issue again arose in recent proceedings – Cole v Marlborough College [2024] EWHC 3575 (KB) – involving a former pupil who is seeking information through subject access regarding an investigation into a disciplinary matter in his former school.

As in X, the judge noted the absence of any express power to inspect the materials without permitting their disclosure to the claimant. But, relying on X, the judge held that there was an implied power (either implied within section 167) and/or in exercise of the court’s inherent jurisdiction.

Given the impending amendment of the statute to make the power express, rather than implied, these cases will probably just become footnotes, rather than landmark judgments. But they’re interesting for illustrating how courts will find implied powers and procedures where justice demands it.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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January 26, 2025 · 9:45 am

Consent is not the only basis

In 2017 I attended a free event run by a “GDPR consultancy”. The presenter confidently told us that we were going to have to get consent from customers in order to process their personal data. One attendee said they worked at the DWP, so how were they going to get consent from benefits claimants who didn’t want to disclose their income, to which the presenter rather awkwardly said “I think that’s one you’ll have to discuss with your lawyers”. Another attendee, who was now most irritated that he’d taken time out from work for this, could hold his thoughts in no longer, and rudely announced that this was complete nonsense.

That attendee was the – much ruder in those days – 2017 version of me.

I never imagined (although I probably should have done) that eight years on the same nonsense would still be spouted.

Just as the Data Protection Act 2018 did not implement the GDPR in the UK (despite the embarrassing government page that until recently, despite people raising it countless times, said so) just as the GDPR does not limit its protections to “EU citizens”, so GDPR and the UK GDPR do not require consent for all processing.

Anyone who says so has not applied a smidgeon of thought or research to the question, and is probably taking content from generative AI, which, on the time-honoured principle of garbage-in, garbage-out, has been in part trained on the existing nonsense. To realise why it’s garbage, they should just start with the DWP example above and work outwards from there.

Consent is one of the six lawful bases, any one or more of which can justify processing. No one basis is better than or takes precedence over the other.

To those who know this, I apologise for having to write it down, but I want to have a sign to tap for any time I see someone amplifying the garbage on LinkedIn.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 30, 2024 · 7:19 am

Immunity from suit in data protection (and other) claims

[reposted from LinkedIn]

All too often, in my experience, public authorities might inadvertently disclose confidential information about one person to someone with whom that person is in dispute, or from whom that person is in danger. Typical examples are when a council discloses information about one resident to a neighbour, or when the police disclose information about a vulnerable person to their abusive partner.

This can also happen during the process of court proceedings.

There is a long-standing – and complex – common law concept of “immunity from suit”, which, in the very simplest and most general of terms, will prevent someone from being sued for something they say in court.

This judgment involves a fascinating, but headache-inducing, analysis of the different types of immunity from suit – witness immunity at court, advocate’s immunity at court, witness immunity before court, advocate’s immunity before court and legal proceedings immunity before court (which may apply to lawyers, police officers or administrative staff preparing a case for trial).

The background facts are grim: a woman fleeing from domestic violence was forced to flee from safe homes because twice her addresses were inadvertently disclosed (or at least indicated) to the perpetrator, against whom criminal proceedings were being brought – once by the police and once by the CPS.

The woman brought claims against both public authorities under the Human Rights Act 1998, the Data Protection Act 2018 and in misuse of private information. However, the defendants initially succeeded in striking the claims out/getting summary judgment (one part of the claim against the police was permitted to continue).

Mr Justice Richie upheld the appeal against the strike out/summary judgment, with rather a tour de force run through of the history and authorities on immunity (para 66 begins with the words “I start 439 years ago”).

In very short summary, he held that strike out/summary judgment had been inappropriate, because “the movement in the last 25 years in the appellate case law has been away from absolutism, towards careful consideration of whether the facts of each case actually do fit with the claimed ‘immunity’ by reference to whether the long-established justifications for the immunity apply” (at 106). In the examples here, it was at least arguable that immunity was being claimed not over evidence in the case, but “extraneous or peripheral or administrative matters”. The judge should have applied a balancing exercise to the facts to decide whether immunity applied: she had failed to do so, and had not been entitled to determine that there was no arguable claim

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 7, 2024 · 4:52 pm

Subject access: recipients, and motive

A very significant subject access judgment has been handed down in the High Court. Key rulings have been made to the effect that 1) requesters are entitled, in principle, to be informed of the identities of the recipients of their personal data (not just the categories of recipient), and 2) the subject access regime has a “specific and limited purpose, which is to enable a person to check whether a data controller’s processing of his or her personal data unlawfully infringes privacy rights and, if so, to take such steps as the data protection law provides.

The underlying details of the case are interesting and alarming in themselves. A director of a gardening company (Mr Cameron) had covertly recorded threatening calls made by a wealthy homeowner working in the property investment industry (Mr Harrison) with whom the company was coming into dispute, and subsequently circulated the recordings to a limited number of unnamed family members and others.

The recordings found their way to a wider circle of people, including some of Mr Harrison’s peers and competitors in the property investment sector. Mr Harrison contended that the circulation of the recordings had caused his own company to lose out on a significant property acquisition. Accordingly, he made subject access requests, under Article 15 of the UK GDPR both to and Cameron and to Mr Cameron’s company (“ACL”). Those requests were rejected on the grounds that i) Mr Cameron, when circulating the recordings, was processing Mr Harrison’s personal data in a “purely personal and household” context, and so the processing was out of scope of the UK GDPR, ii) Mr Cameron was not personally a controller under the UK GDPR, iii) ACL could rely on the exemption to disclosure where it would involve disclosing information relating to another individual who did not consent to disclosure, and where – in the absence of such consent – it was not reasonable in the circumstances to disclose (see Article 15(4) UK GDPR and paragraph 16 of Schedule 2 to the Data Protection Act 2018).

In a lengthy judgment (dealing mostly with the facts and evidence) Mrs Justice Steyn held that Mr Cameron’s processing was not for purely personal and household reasons: he was clearly acting as a director of ACL in making the recordings and circulating them. However, she agreed that he was not a controller – he was acting in his capacity as a director, and – following Ittihadieh and In re Southern Pacific Loans – a director processing data in the course of their duties for their company is not a controller; the company is.

A crucial part of the judgment, in terms of wider relevance, is on the interpretation of Article 15(1)(c) of the UK GDPR. This provides that a data subject should be given information on “the recipients or categories of recipient” to whom personal data have been or will be disclosed. Many practitioners, and lawyers, have taken this be an option available to the controller (i.e. the controller can decide whether to provide information on the specific recipient or just on categories thereof). Not so, said Steyn J, agreeing with the CJEU in the Austrian Post case (which, as a post-Brexit case, wasn’t binding on her, but to which she could have regard, so far as it was relevant to the issues (see section 6(2) of the EU (Withdrawal) Act 2018)): the choice lies with the data subject, and, if the data subject chooses to receive information on individual recipients, he or she is entitled, in principle, to that information (unless it would be impossible or manifestly excessive to do so).

Notwithstanding this, Mr Harrison was not entitled in this case to have the identities. Mr Harrison had previously sent subject access requests individually to at least 23 employees of ACL and ACL, and he had an intention to pursue further legal options other than under the UK GDPR, if he was to identify potential claimants. ACL believed that disclosing identities of recipients of the recordings would put them at “significant risk of being the object of intimidating, harassing and hostile legal correspondence and litigation”. The judge agreed that it was “not unreasonable for the Defendants to give significant weight to [Mr Harrison’s] sustained and menacing behaviour in considering whether to protect or disclose the identities of friends, colleagues and family members”. The fact that “hostile litigation”, against the third parties to whom the recordings were disclosed, was being contemplated was a relevant factor to take into account when balancing their interests with Mr Harrison’s access rights, under paragraph 16 of Schedule 2. The judge held that

[Although there] is no general principle that the interests of the request should be treated as devalued by reason of a motive to obtain information to assist the requester in litigation…as Farbey J observed in X v Transcription Agency…the SAR regime “has a specific and limited purpose, which is to enable a person to check whether a data controller’s processing of his or her ‘personal data’ unlawfully infringes privacy rights and, if so, to take such steps as the DPA 2018 provides“…[and so] it was reasonable for the Defendants to give weight to their desire to protect family, friends and colleagues from hostile litigation going beyond the exercise of rights under the UK GDPR and the DPA 2018

So, the perennial question of the extent to which a requester’s motive is relevant when responding to a subject access request rears its head again. Steyn J’s analysis is compelling, and so it certainly appears that – at the very least when it comes to the balancing test implied by paragraph 16 of Schedule 2 – the motive is capable of being taken into account.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 4, 2024 · 6:16 pm

How far can a legal fiction go?

When the Information Commissioner, as a public authority subject to the Freedom of Information Act 2000 (FOIA), is required to consider, as regulator, his own handling of a FOIA request, he enters into a legal fiction, whereby he separates himself into two, along these lines (taken from a decision notice):

This decision notice concerns a complaint made against the Information Commissioner (‘the Commissioner’). The Commissioner is both the regulator of FOIA and a public authority subject to FOIA. He’s therefore under a duty as regulator to make a formal determination of a complaint made against him as a public authority…In this notice the term ‘ICO’ is used to denote the ICO dealing with the request, and the term ‘Commissioner’ denotes the ICO dealing with the complaint.

It’s a legal fiction because the Information Commissioner is a corporation sole: every single function he has vests in him (and he has powers of delegation).

With this in mind, it is interesting to consider section 132(1) of the Data Protection Act 2018. This provides that

A person who is or has been the Commissioner, or a member of the Commissioner’s staff or an agent of the Commissioner, must not disclose information which— (a) has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions, (b) relates to an identified or identifiable individual or business, and (c) is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources. (Unless the disclosure is made with lawful authority.)

When partaking in the legal fiction described above, can it be said that the Commissioner, or the Commissioner’s staff, have obtained, or been provided with, information, when the Commissioner is the person who holds the information? I think not. And if I’m right, that should mean that the Commissioner cannot rely on the exemption at section 44 of FOIA, on the grounds that there is a statutory bar on disclosure. But that’s what he does in response to this recent FOIA request. It will be interesting if the applicant asks for a decision notice.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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March 1, 2024 · 6:48 am

How did George Galloway come to send different canvassing info to different electors?

As electors went to the polls in the Rochdale by-election on 29 February, a few posts were made on social media showing the disparity between letters sent to different electors by candidate George Galloway. An example is here

On the face of it, Galloway appears to have hoped to persuade Muslim voters to vote for him based on his views on a topic or topics he felt would appeal to them, and others to vote for him based on his views on different topics.

It should be stressed that there is nothing at all wrong that in principle.

What interests me is how Galloway identified which elector to send which letter to.

It is quite possible that a candidate might identify specific roads which were likely to contain properties with Muslim residents. And that, also would not be wrong.

But an alternative possibility is that a candidate with access to the full electoral register, might seek to identify individual electors, and infer their ethnicity and religion from their name. A candidate who did this would be processing special categories of personal data, and (to the extent any form of automated processing was involved) profiling them on that basis.

Article 9(1) of the UK GDPR introduces a general prohibition on the processing of special categories of personal data, which can only be set aside if one of the conditions in Article 9(2) is met. None of these immediately would seem available to a candidate who processes religious and/or ethnic origin data for the purposes of sending targeted electoral post. Article 9(2)(g) provides a condition for processing necessary for reasons of substantial public interest, and Schedule One to the Data Protection Act 2018 gives specific examples, but, again, none of these would seem to be available: paragraph 22 of the Schedule permits such processing by a candidate where it is of “personal data revealing political opinions”, but there is no similar condition dealing with religious or ethnic origin personal data.

If such processing took place in contravention of the prohibition in Article 9, it would be likely to be a serious infringement of a candidate’s obligations under the data protection law, potentially attracting regulatory enforcement from the Information Commissioner, and exposure to the risk of complaints or legal claims from electors.

To be clear, I am not saying that I know how Galloway came to send different letters to different electors, and I’m not accusing him of contravening data protection law. But it strikes me as an issue the Information Commissioner might want to look into.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 27, 2023 · 7:23 am

Soft regulation = poorer compliance?

The Information Commissioner’s Office (ICO) has published reprimands against seven separate organisations all of whom committed serious infringements of data protection law by inadvertently disclosing highly sensitive information in the context of cases involving victims of domestic abuse.

The ICO trumpets the announcement, but does not appear to consider the point that, until recently, most, if not all, of these infringements would have resulted in a hefty fine, not a regulatory soft tap on the wrist. Nor does it contemplate the argument that precisely this sort of light-touch regulation might lead to more of these sorts of incidents, if organisations believe they can act (or fail to act) with impunity.

I have written elsewhere about both the lack of any policy or procedure regarding the use of reprimands, and also about the lack of empirical evidence that a “no fines” approach works.

I think it is incumbent on the Information Commissioner, John Edwards, to answer this question: are you confident that your approach is not leading to poorer compliance?

The cases include

  • Four cases of organisations revealing the safe addresses of the victims to their alleged abuser. In one case a family had to be immediately moved to emergency accommodation. 
  • Revealing identities of women seeking information about their partners to those partners. 
  • Disclosing the home address of two adopted children to their birth father, who was in prison on three counts of raping their mother. 
  • Sending an unredacted assessment report about children at risk of harm to their mother’s ex-partners. 

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 12, 2023 · 8:49 am

Arbitrary criminality and data protection

It shouldn’t be too controversial to state that to commit a criminal offence is a serious matter: although there are – obviously – different levels of severity, certain acts or omissions are so injurious to society as a whole that they warrant prosecution.

The majority of infringements of data protection law are not criminal offences, but, rather, contravention of civil law. But there are a few offences in the statutory scheme. Section 132 of the Data Protection Act 2018 (DPA) is one such. It says that it is an offence for the Information Commissioner, or a member of his staff, to disclose information

which—

(a)has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions,

(b)relates to an identified or identifiable individual or business, and

(c)is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,

However, it will not be an offence if the disclosure is made with “lawful authority”, and a disclosure is made with lawful authority only if and to the extent that

(a)the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,

(b)the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),

(c)the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions,

(d)the disclosure was made for the purposes of, and is necessary for, the discharge of an EU obligation,

(e)the disclosure was made for the purposes of criminal or civil proceedings, however arising, or

(f)having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.

This means that, for instance, if an individual or a business has given (willingly or under compulsion) information to the Commissioner for the purposes of a regulatory investigation, and the information is not already public, then the Commissioner must not disclose it, unless he has lawful authority to do so.

Where, also for instance, the Commissioner publishes a legal decision notice, or monetary penalty notice, or the like, this will ordinarily contain information of this kind, but the Commissioner can point to the lawful authority he has under section 132(2)(c) – namely that the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions. No offence committed.

But section 132 is why the Commissioner’s Office might refuse, under the Freedom of Information Act 2000 (FOIA), to disclose information it has received from an individual or business. For instance, a notification report a controller has submitted pursuant to its “personal data breach” obligations under Article 33 UK GDPR. Here is an example. The ICO withholds the “breach report” in question, citing the exemption at section 44, because of the offence provisions at section 132 DPA.

Whether this is an over-cautious stance is one thing, but it is understandable.

What puzzles me, though, is the inconsistency, because elsewhere, in very similar circumstances, in response to a FOIA request, the ICO has disclosed a personal data report (albeit with redactions). Here, also.

If the Commissioner’s staff in the first example feel that they would commit an offence by disclosing the report, do the staff dealing with the second or third examples not feel that they would also?

One thing that should certainly not happen is claiming exemptions because it is easier to do so than not. I am not saying that has happened here, but there certainly seems to be inconsistency. And inconsistency, or uncertainty, about whether a regulator and his staff might commit a criminal offence is not a good situation.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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