Category Archives: Data Protection

Information Notices: UKIP -v- Information Commissioner

Last week the Information Commissioner published an update on her investigation into the use of personal data in political campaigning; it received much publicity and I wrote about the report on this blog. In the report it was revealed that the First-Tier Tribunal (Information Rights) (hereafter “FTT”) had dismissed an appeal by the United Kingdom Independence Party (“UKIP”) against an Information Notice served upon it by the Commissioner.

I have previously written on Information Notices more generally (which dealt with them under the Data Protection Act 1998 (”DPA98”), rather than the Data Protection Act 2018(“DPA18”)) and so I don’t propose to set out in any detail what an Information Notice is; however, in brief the Commissioner had the power to compel a person (not just a data controller) to provide her with certain information under section 43 of the DPA98; failure to comply with an Information Notice issued under the DPA98 is a criminal offence.

In my blog post last week I said that I would try and blog when the FTT published its decision in respect of UKIP’s appeal against the Information notice. The FTT has now published its decision in United Kingdom Independence Party (UKIP) –v– The Information Commissioner [pdf]. The background to the Information Notice is set out in the decision, but it appears that the Commissioner’s office wrote to UKIP asking it to provide certain information. UKIP responded, but did so in a very unsatisfactory manner. In particular the answers given were lacking in detail and contradicted information obtained by the Commissioner’s office from the Electoral commission website.  As a result, the Commissioner used her power to compel information from UKIP.

UKIP appealed on the grounds that the Information Notice was “unjust, disproportionate and unnecessary because the UKIP has never suggested it would not comply and that a preferable course of action would have been for the Commissioner to write seeking clarification and specific details.“ [para 13] It seems that the Tribunal issued Directions asking the Commissioner whether she could issue a fresh Information notice because the FTT was not clear on certain matters; however, it was pointed out that this was not open to either the FTT or the Commissioner and that the FTT must allow or dismiss the appeal by UKIP.

The matters upon which the FTT was uncertain were clarified by the Commissioner and ultimately the appeal was dismissed by the FTT. The appeal was considered, at the request of both parties, on the papers alone and therefore no hearing took place. The Tribunal concluded that “the expressed intention of UKIP to provide information and co-operate with the Commissioner is at odds with the information provided by UKIP.” [para 19] UKIP was not arguing that the Notice was not issued “in accordance with the Data Protection Act [1998]” [para 20].

It appears from the FTT’s decision that UKIP later did try to argue that it was not in accordance with the law founding upon the FTT’s own request for clarification; however, the FTT decided that the “notice, of itself, is clear”  and that the reasoning advanced by UKIP did “not provide grounds for allowing this appeal.” [para 25]

The Tribunal also concluded that the appeal had no merit [para 26] before unanimously dismissing the appeal [para 27].

Information Notices are not a common feature of the data protection enforcement landscape. UKIP could seek to appeal the FTT’s decision to dismiss its appeal and whether UKIP seek permission to appeal the decision to the Upper Tribunal remains to be seen. My own view, from the information available in the FTT’s judgment, is that the ultimate conclusion of the FTT was correct; however, the route by which the FTT arrived at that conclusion is unhelpful and may be enough to persuade either the FTT or the Upper Tribunal to grant permission to appeal.

From reading the FTT’s decision it appears that there might have been some confusion on the part of the FTT concerning what its functions were in respect of Information Notices and what the statutory scheme for such a notice was. Whether this was down to the way in which the Commissioner had presented the case on the papers or down to a genuine lack of understanding by the FTT is something that we might never know (especially if there is no appeal by UKIP to the Upper Tribunal)

In terms of the actual decision; it is not at all surprising that the FTT did not take UKIP’s assertion that it would co-operate with the Commissioner at face value when presented with its response to the Commissioner’s more informal request for information from them. It underlines the importance of genuinely engaging with the Commissioner when they are undertaking investigations – they do have certain powers to assist them with their investigation and they do seem willing to use those powers where they feel as though they need to do so.

The framework for Information Notices has changed slightly under the GDPR/DPA18 – it’s no longer a criminal offence to fail to comply with an Information Notice; however, the Commissioner could go to court and obtain an Information Order from the Court where an Information Notice is not complied with. A right of appeal to the FTT continues to exist against Information Notices issued under the DPA18.

Alistair Sloan

If you are facing an investigation by the Information Commissioner in respect of alleged failures to comply with privacy and data protection law, or if you require advice on any other information law matter you can contact Alistair Sloan on 0141 229 0880.  Alternatively you can contact him directly by E-mail.  We also have a dedicated information law twitter account which you can follow.

Facebook, Fines and Enforcement: ICO investigation into political campaigning

In March the Commissioner executed a warrant under the Data Protection Act 1998, to much fanfare and press coverage, on Cambridge Analytica – the data analytics firm who had been involved in the election campaign by US President Donald Trump and who had allegedly undertaken work for Leave.EU in the 2016 referendum on whether the UL should remain a member of the European Union or not. At the same time the Information commissioner announced a much wider investigation into compliance with data protection and privacy laws in political campaigning.

The Information Commissioner has today published a report giving an update on that wider investigation [pdf]. There has been much fanfare around this report and in particular a suggestion that Facebook has been served with a Monetary Penalty Notice in the amount of £500,000. This would be big news; it may not be a large sum of money to Facebook, but £500,000 is the maximum that the Information commissioner can serve a Monetary Penalty Notice for under the Data Protection Act 1998.

However, it has become clear that Facebook has not been served with a Monetary Penalty Notice in the amount of £500,000. The first thing to note here is that the Data Protection Act 1998 still applies; the alleged breaches of data protection law that the Commissioner is concerned with pre-dated 25 May 2018 and therefore the powers under the General Data Protection Regulation (GDPR) do not apply. What has happened is that the Information Commissioner has served a “Notice of Intent” on Facebook indicating that the Commissioner intends on serving Facebook with a Monetary Penalty Notice in the amount of £500,000. This is the first stage in the process of serving a Monetary Penalty Notice, but it is by no means guaranteed that (a) a Monetary Penalty Notice will be issued; and (b) that it will be in the amount of £500,000.

Facebook will have the opportunity to make written representations to the Information Commissioner on various matters, including whether the statutory tests for serving a Monetary Penalty Notice have been met and on the amount of the Penalty. The Commissioner must take account of these representations when making a final decision on serving the Monetary Penalty Notice: not to do so would likely result in an appeal against the Notice to the First-Tier Tribunal (Information Rights), which could ultimately result in the Monetary Penalty Notice being reduced in amount or quashed altogether. If Facebook brings forward evidence to the Commissioner that means she can no longer make certain findings in fact that will have an impact on both her ability to serve the Monetary Penalty Notice and the amount of that notice.

It could be many more weeks, if not months before we know whether a Monetary Penalty Notice is in fact being served on Facebook and how much it is for. The Commissioner must serve the Monetary Penalty Notice on Facebook within six month of serving the Notice of Intent.

There are some other aspects of the Commissioner’s report that are worthy of some brief consideration. The Commissioner has announced that she is intending on prosecuting SCL Elections Limited. The information given by the Commissioner suggests that this prosecution is to be limited to one very specific issue: their failure to comply with an Enforcement Notice previously served on the company. The Enforcement Notice was served on the company after they failed to comply with a subject access request received by them from a US academic. The company was in administration when the Enforcement Notice was served and remains in administration today. The Information Commissioner is able to prosecute offences under the legislation it is responsible for enforcing in its own right; except in Scotland where it requires to report the matter to the Procurator Fiscal in the same way as every other law enforcement agency is required. How successful that prosecution will be and what benefit it will bring remains to be seen given that the company is in administration. Even if the company is successfully

We have also seen what appears to be the first piece of enforcement action taken under the Data Protection Act 2018 and the General data Protection Regulation.  The Commissioner has served an Enforcement Notice on the Canadian company, Aggregate IQ [pdf]. This amounts to what could be termed as a “stop processing notice” and it requires Aggregate IQ to, within 30 days, “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning, or any other advertising.”

Failure to comply with an Enforcement Notice under the Data Protection Act 2018 and the GDPR is not (unlike under the Data Protection Act 1998) a criminal offence; however, a failure to comply can result in an administrative fine of up to €20 million or 4% of global turnover (whichever is the greater). How successful the ICO will be at enforcing this enforcement notice, given that the company is located in Canada and appears to have no established base in the UK, or any other EU member state, remains to be seen.

Other investigations are still ongoing. The Commissioner appears to be continuing to investigate whether there was any unlawful data sharing between Leave.EU and Eldon Insurance. Investigations are also being undertaken into the main ‘Remain’ campaign in the EU referendum and also into all of the UK’s main political parties. It remains to be seen what will happen there.

The Commissioner’s report also informs us that the appeal by the United Kingdom Independence Party (UKIP) against an Information Notice previously served upon them has been dismissed. The First-Tier Tribunal (Information Rights) has not yet published a decision in that case on its website, but should it do so I shall endeavour to blog on that decision (especially given that there has never to my knowledge been an appeal to the Tribunal against an Information Notice). Failure to comply with an Information Notice is a criminal offence, and a company was recently fined £2,000 at Telford Magistrates’ Court for that very offence.

Alistair Sloan

If you require advice or assistance on a matter relating to data protection or privacy law then you can contact Alistair Sloan on 0141 229 0880 or send him an E-mail. You can also follow our twitter account dedicated to information law matters.

Data Protection/Privacy Enforcement: June 2018

June was exceptionally good weather wise with lots of bright and sunny weather, but the outlook for some data controllers was not so bright or sunny as the Information Commissioner took action againt them for data protection and privacy breaches. Many of the key points arising out of last month’s enforcement action make a regular appearance on this blog. In relation to enforcement of (the now repealed) Data Protection Act 1998, the focus remains heavily on breaches of the seventh data protection principle relating to technical and organisational measures.

Key Points

  • Train, train, train – training is a key aspect of a data controllers ability to reduce the risk of suffering a data breach. Ensuring that all staff receive appropriate training on data protection relevant to their job role upon induction; and regular refresher training thereafter, is a core aspect of ensuring that the organisation has in place adequate organisational measures. It’s also important to ensure that people actually undertake induction and referesher training on offer. It is all very well having lots of well designed and worked-out policies, procedures and training material, but if nobody is being trained on the policies and procedures, then the controller might as well have not made the investment in the first place.
  • Sending bulk E-mails is a high risk activity and extreme care should be taken to ensure that personal data is not inappropriately revealed. The manual entry of E-mail addresses can pose a significant risk; even if there is a well documented procedure to use the Bcc field (and everyone has undergone their induction and refresher training setting out this procedure).
  • The right of subject access is a core right of data subjects and it is therefore important that data controllers have in place adequate procedures to identify, record, track and respond to subject access requests. A failure to comply with a subject access request can result in a data subject making a complaint to the Information Commissioner (who may take enforcement action) or applying to the court for an order forcing the data controller to comply.
  • When conducting direct marketing campaigns by electronic means, make sure that you really do have in place the appropriate consents. Further, if you’re sending something as a service message make sure it really is a service message and not a marketing message dressed up as a service message.
  • If you are making live telephone calls for the purposes of direct marketing you must ensure that you do not make calls to telephone numbers listed with the Telephone Preference Service unless you have clear consent to do so.

Enforcement action published in June 2018

 The British and Foreign Bible Society
The British and Foreign Bible Society was served with a Monetary Penalty Notice in the amount of £100,000 [pdf] after suffering a ransomware attack. This had been possible after a brute-force attack had exploited a vulnerability of a weak password. This gave them access to the Remote Desk Server (which allowed home working). The attackers were therefore able to access personal data. The Commissioner considered that the British and Foreign Bible Society did not have in place adequate organisational and technical measures and as such was in breach of the seventh data protection principle.

Chief Constable of Humberside Police
The Chief Constable of Humberside Police gave an undertaking to the Information Commissioner after loosing interview disks and written notes concerning n allegation of rape [pdf]. Humberside Police had conducted the interviews on behalf of another force. During the course of the Commissioner’s investigation into the data breach, it transpired that training compliance within the force on data protection was only 16.8%. Of the three officers involved in the initial incident, two had received training some years ago and the third had received no training at all.

Chief Constable of Gloucestershire Police
The Chief Constable of Gloucestershire Police was served with a Monetary Penalty Notice in the amount of £80,000 [pdf] after sending a bulk E-mail which identified victims of historic child abuse. In December 2016 an officer sent an update about investigations into allegations of child abuse relating to multiple victims. The officer did not make use of the ‘Bcc’ function and instead entered all of the E-mail addresses into the “to” field thus revealing the E-mail addresses of every recipient to every other.

Ainsworth Lord Estates Limited
Ainsworth Lord Estates Limited was served with an Enforcement Notice after it failed to respond to a Subject Access Request made by a data subject [pdf]. The data subject made a subject access request to the controller and got an out of office response; when they received no response they attempted to engage with the controller, but got no response. When the Commissioner became involved her office attempted to contact the controller, but had no success in receiving a response.

British Telecommunications Plc
British Telecommunications Plc (BT) was served with a Monetary Penalty Notice in the amount of £77,000 [pdf] for breaching the provisions of the Privacy and Electronic Communications (EC Directive) regulations 2003. A complaint was made to the ICO by an individual who had opted out of receiving marketing communications from BT when they received a message from BT promoting its ‘My Donate’ platform. The Commissioner opened an investigation as it appeared the message had been sent to  the whole of BT’s marketing database. BT advised the Commissioner that it considered that the message re ‘My Donate’ was a service message, rather than a marketing message. Two other marketing campaigns took place, which BT accepted were marketing campaigns and argued that they had complied with the requirements of PECR by only sending it to those who had opted-in; BT purported to also reply upon the ‘soft opt-in’. The Commissioner found that in relation to all three campaigns, BT had failed to comply with Regulation 22 of PECR.

Our Vault Limited
Our Vault Limited was served with an Enforcement Notice [pdf] and also with a Monetary Penalty Notice in the amount of £70,000 [pdf] after it failed to comply with the provisions of PECR. The company made live telephone calls for the purposes of marketing the products of a third party company (under the guise of conducting lifestyle research); including to numbers that were listed with the Telephone Preference Service where they did not have the consent of the subscriber to do so, contrary to Regulation 21 of PECR.

Horizon Windows Limited
Horizon Windows Limited was served with an Enforcement Notice after it failed to comply with the provisions of Regulation 21 of PECR [pdf]. In this case complaints continued to be received by the Commissioner during the course of her offices’ investigation.

Alistair Sloan

If you require advice and assistance in connection with any of the data protection/privacy issues above, or any other Information Law matter, please do contact Alistair Sloan on 0141 229 0880 or by sending him an E-mail directly.  You can also follow our dedicated information law twitter account.

Compensation for identifiable third parties following a data breach

The subject of data protection has, once again, been visited by the England and Wales Court of Appeal. At the end of last week the Court (Gross LJ, McFarlane LJ and Coulson LJ) gave its judgment in an appeal brought by the Secretary of State for the Home Department and the Home Office against a decision of the England and Wales High Court in which it was found liable to three members of a family following a data breach.

The Factual Background
The facts as found proved by the court at first instance are more fully set out in the judgment of Mitting J ([2016] EWHC 2217 (QB)), but they can be summarised for the purposes of this blog post in the following way.  The case concerns three members of a family TLT, TLU and TLV. TLT and TLU are married (but have different surnames) and TLU is the teenage son of TLT (sharing the same surname). In 2010 the family lawfully arrived in the United Kingdom. They claimed asylum. They were also jointed by an older child who was, in 2010, 17 years of age. Upon turning 18, he applied for asylum in his own right. His application fro asylum was rejected and he was returned to Iran in 2012. TLT and TLU heard from relatives in Iran that upon his return to Iran their son had been detained and tortured and subsequently released after paying a bribe.

On 15th October 2013 the Home Office suffered a data breach when it accidently published more information than it had intended to concerning the family return process. It had intended to publish the statistics contained in the first sheet of a spreadsheet, but not the underlying data that was contained in a second sheet. The error was discovered on 28th October 2013 and the spreadsheet was immediately removed from the internet. It was discovered that by the time the spreadsheet was removed at least one unknown individual had downloaded and saved the spreadsheet.

In November 2014 a person who had downloaded the page and the spreadsheet from the UK Border Agency’s website uploaded the spreadsheet onto a US website; this was later removed on 18 December 2013.

The personal data of TLT was included within the spreadsheet; in particular it included both his forename and surname, his nationality (Iranian), his date of birth and age. It also noted that “assisted return” was being pursued and stated that the removal case type was “Family with Children – Voluntary”. It further acknowledged that asylum had been claimed.

In March 2014, TLU received some communications from a family member in Iran. These communications advised that the Iranian authorities had detained another member of TLU’s family and questioned them about “you”. It was said that the authorities in Iran claimed to have documentation showing that TLT and his family had claimed asylum.

The issues on appeal
There were three issues on appeal:

  • Did the spreadsheet in question contain the private and/or confidential information?
  • Did the spreadsheet contain personal data of which TLU and TLV were the data subjects?
  • Even if the information in the spreadsheet did not contain the personal data of TLU and TLV, are they entitled to damages for the distress they have suffered under section 13 of the Data Protection Act 1998 in any event?

The first issue
This issue amounts to a common law tort in English law. At para 28 of the judgment of the Court of Appeal Gross LJ said that “this issue is short, straightforward and essentially one of fact.” Gross LJ had “no hesitation in concluding that the Home Office’s publication of the spreadsheet misused TLU’s and TLV’s private and confidential information.” [31] TLT was the lead family claimant and the detailed nature of the information concerning TLT as such meant that TLU and TLV “could readily be identified by third parties” and that they “had a reasonable expectation of privacy and confidentiality in respect of their information in the spreadsheet.” [31]

The second Issue
In terms of section 1 of the Data Protection Act 1998, personal data was defined as meaning “data which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.” The Data Protection Act 1998 was the domestic vehicle through which the United Kingdom implemented is obligations under Directive 95/46/EC (which has, of course, now been replaced by the General Data Protection Regulation, but is still relevant for the purpose of this case as that was the law in force at the time). Recital 26 of the Directive noted that the “principles of protection” should take account “of all the means likely reasonably to be used either by the controller or by any other person to identify the” data subject.

In the present case, limb (b) of the definition of personal data was met in relation to TLU and TLV. The Home Office had argued that the information contained in row 1101 of the spreadsheet (which concerned TLT) did not “relate to” TLU and TLV. This was rejected by the court with reference to the statutory language. [39]

The Home Office had also sought to rely on Durant v Financial Services Authority as a means of trying to limit the scope of personal data (and therefore its liability) in this case. However, Gross LJ held that Durant, when properly applied, “powerfully reinforces the case for TLU and TLV” [44] and that Auld LJ was simply stating “a broad, practical working assumption.” [42] There was nothing within Durant that enabled the Court to depart from the conclusions that they must reach in light of the decision by the Court of Appeal in Vidal-Hall v Google and the Supreme Court in Common Services Agency v Scottish Information Commissioner

Third Issue
In the circumstances, this issue did not arise and the court felt it best to leave resolution of it “to a case where a decision is required” on it. [48]

Comment
The appeal was therefore dismissed by Gross LJ on all three issues that were raised and McFarlane LJ and Coulson LJ simply agreed adding no further comments of their own.

This is an interesting, but not unexpected, decision from the Court of Appeal which will be binding on all lower courts in England and Wales and will be persuasive in Scotland. It is difficult to find fault with the approach taken by the Court of Appeal or the judge at first instance; indeed, this is very much the view of the Court of Appeal. It does make it clear though that it will be possible for data subjects not directly referred to within the compromised data arising out of a data breach to sue for damages in certain circumstances. The first instance case had become an important case when such situations arose and now that the Court of Appeal has confirmed the approach adopted by the first instance judge it is likely that we will see more claims of this nature being made.

The circumstances in the present case are fairly clear-cut, but not all situations where liability might arise will be as clear-cut. The GDPR is not going to have any real impact upon this position; the definition of personal data essentially adopts the same two-stage test as was to be found within section 1 of the Data Protection Act 1998. Therefore this pre-GDPR case will continue to be instructive in the post-GDPR world we now inhabit.

Alistair Sloan

If you require further information in relation any data protection or privacy law matter then please do contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law account on twitter for news and updates concerning data protection, privacy and freedom of information.

Data Protection/Privacy Enforcement: May 2018

May saw the long awaited General Data Protection Regulation coming into force, but it will be a while yet before we begin to see regulatory enforcement action taken under the GDPR and the associated Data Protection Act 2018 being taken. In May there was, as is normal, a steady stream of enforcement action against data controllers published by the Information Commissioner’s Office. It is once again time to take our monthly look at what breaches the Commissioner has taken enforcement action in relation to and what data controllers and their staff can learn from it.

Key Points

  • This is a frequent message of these monthly reviews, but it is important to ensure that you screen telephone numbers you are intending to call as part of a marketing campaign against the list maintained by the Telephone Preference Service. If you have, and can demonstrate that you have, consent to do so; you can call a number that is listed with the Telephone Preference Service.
  • When undertaking direct marketing by telephone you must identify the caller; if you are making the call on behalf of a third party then you must also identify the third party. It is not permissible to hide, obscure or refuse to provide the identity of the caller or their principal.
  • If you are obtaining personal data from a third party organisation for the purposes of direct marketing, you should ensure that you conduct your own due diligence checks to ensure that the appropriate consents are in fact in place.
  • When drafting privacy notices, when setting out to who you will be passing personal data onto for the purposes of direct marketing you need to be fairly specific. It is not sufficient to simply put “selected partners” or phrases that are similarly generic.
  • When sending personal data or sensitive personal data, even to other sites within your own company, it is important to ensure that you have in place adequate technical and organisational measures. Encrypting CDs and memory sticks is easy and cheap to do and therefore should be done whenever sending personal data outside the organisation on such media.
  • You should ensure that when updating the security of your websites and servers that you look at all aspects of your website and severs, including microsites and sub-domains, to ensure that you are taking appropriate precautions to secure the websites and servers.
  • When storing personal data offsite you should ensure that you take steps to keep that personal data safe and secure; off-site storage may not be visited as regularly by staff as your on-site storage and so this should be taken into consideration. When vacating a premises it is important to ensure that you systematically check the premises to ensure that all personal data has been removed from the site – you should be able to evidence your plan and that it was followed.
  • If you’re processing personal data within the European Union which concerns a data subject resident oustide of the European Union then you may be required to comply with a subject access request received from teh data subject.

Enforcement action published in May 2018

IAG Nationwide Limited
IAG Nationwide Limited was served with both an Enforcement Notice [pdf] and a Monetary Penalty Notice in the amount of £100,000. [pdf] IAG Nationwide Limited is an advertising/marketing agency. IAG Nationwide Limited made telephone calls to numbers which were listed with the Telephone Preference Service (TPS) and continued to make such calls even after complaints had been raised with the TPS.  This was a contravention of Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). IAG Nationwide Limited also failed to properly identify itself to those who it called which was a contravention of Regulation 24 of PECR. Indeed, when the Commissioner’s staff contacted the company by telephone they refused to provide its address and only provided an E-mail address which was unregistered and available for sale.

Costelloe and Kelly Limited
Costelloe and Kelly Limited were served a Monetary Penalty Notice in the amount of £19,000 [pdf] after it undertook a direct marketing campaign by text message in a way that contravened Regulation 22 of PECR. The company instigated the transmission of approximately 283,500 test messages promoting products without having in place proper consent to do so. The company had relied upon a list supplied to it by a data provider which said that it had obtained consent for the purposes of direct marketing by text messages. Cotselloe and Kelly Limited conducted little or no due diligence itself to ensure appropriate consent. The consent obtained by its data provider was insufficient as it referred only to providing details to its “partners” and other generic descriptions when getting people to “opt-in”.

SCL Elections Limited
SCL Elections Limited was served with an Enforcement Notice requiring it to comply with a Subject Access Request made to it by a data subject [pdf]. SCL Elections Limited provided some information, for and on behalf of Cambridge Analytica. The data subject was not satisfied with the response and made a request for assessment to the Commissioner. In response, SCL Elections Limited asserted that the data subject had no right to make a subject access request nor a request for assessment to the commissioner as the data subject was a US rather than a UK citizen. The Commissioner disagreed and found that SCL Elections had not fully complied with its obligations.

Crown Prosecution Service
The Crown Prosecution Service (CPS) was served with its second Monetary Penalty Notice for a failure to comply with the seventh data protection principle [pdf]. In November 2016 the CPS received from Surrey Police 15 unencrypted DVDs from Surrey Police. The DCDs contained interviews with alleged victims of child sexual abuse. The DVDs received by the CPS were copies; the originals being maintained by Surrey Police. The DVDs were sent by tracked DX delivery to another CPS office to be examined by specialists and were noted to have been delivered before 7 in the morning. The DVDs were likely to have been left in a reception area where individuals not employed by the CPS could have had access to the package. The CPS could not locate the packages. They therefore did not have in place adequate technical and organisational measures.

The University of Greenwich
The University of Greenwich was served a monetary penalty notice in the amount of £120,000 [pdf] after a breach of security resulted in the personal data of approximately 19,500 individuals being extracted by an authorised attacker. The personal data included sensitive personal data in relation to 3,500 individuals. The attacker posted the personal data on a third party website. The commissioner found that the university had failed to have in place adequate technical and organisational measures to ensure that, so far as was possible, the security breach which occurred did not happen and thus contravened the seventh data protection principle.

Bayswater Medical Centre
Bayswater Medical Centre was served a monetary penalty notice in the amount of £35,000 [pdf] after it left sensitive personal data in an empty premises. The practice had operated from two sites, but merged down to one retaining the second as a storage facility. Another GP practice sought to take over the lease and the Bayswater Medical Centre provided the second GP practice with a set of keys. On numerous occasions the second practice notified Bayswater medical Centre of the presence of the medical centres patient records which were unsecured. Bayswater Medical Centre did nothing to rectify the situation, including failing to remove the records from the premises when the new practice requested them to uplift the records. The Commissioner found that the Medical Centre had failed to comply with the requirements of the seventh data protection principle.

Prosecutions
A limited company and its director have been prosecuted by the Information Commissioner’s Office for failing to comply with an Information Notice. The Information notices were issued in October 2017 and both failed to respond to the notices. The company was fined £1,000 and ordered to pay a £100 victim surcharge while the director was fined £325 and ordered to pay a victim surcharge of £32. The director was also ordered to pay £364.08 in prosecution costs.

A former recruitment consultant was successfully prosecuted by the Information Commissioner’s Office after he illegally obtained personal data. The defendant set up his own recruitment consultancy and left his former employer’s employment. When he left the defendant took 272 CVs from his former employers’ database without consent. He admitted an offence of unlawfully obtaining personal data under section 55 of the Data Protection Act 1998.  He was fined £355 and ordered to pay £35 victim surcharge and £700 prosecution costs by Exeter Magistrate’s Court.

Alistair Sloan

If you require advice and assistance in connection with any of the data protection/privacy issues above, or any other Information Law matter, please do contact Alistair Sloan on 0141 229 0880 or by sending him an E-mail directly.  You can also follow our dedicated information law twitter account.

 

Data Protection Act 2018

Earlier this week the House of Lords and the House of Commons completed their game of ping pong with the Data Protection Bill and it completed its journey through the Parliamentary procedure; a journey which began when the Bill was introduced to the House of Lords by the Department for Culture, Media and Sport (DCMS) in September 2017.  Almost eight months later, and after quite a bit of amendment, the Bill has now received Royal Assent to become the Data Protection Act 2018.

It is expected that the various pieces of secondary legislation which are required to bring the Act into force and make transitional provisions will be signed by a Minister in the DCMS later today or tomorrow to ensure that the Act comes into force on Friday.

The new Data Protection Act 2018 does a number of things: (1) it deals with those areas within the GDPR, such as exemptions, which have been left to Member States to deal with individually; (2) applies the GDPR (with appropriate medications) to areas which are not within the competence of the European Union; and (3) gives effect to the Law Enforcement Directive (which should have been in place by the 6th May 2018, but better late than never).

Data Protection law has become much more complex than was the case under the Data Protection Act 1998; it requires individuals to look in many more places to get a proper handle upon what the law requires (and that’s before we start to get decisions from the European and domestic courts).

There has been an indication by some campaign groups that there might be an early challenge to the immigration exemption within the Bill which will have an impact upon the information that data subjects can obtain from the Home Office under the subject access provisions within the GDPR.  It will certainly be interesting to see whether such a challenge is in fact made and what the outcome of it is – and of course, we will cover any decision on that point should one be made by a court.

Alistair Sloan

If you require further information in relation any data protection or privacy law concern then please do contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law account on twitter for news and updates concerning data protection, privacy and freedom of information.

Data Protection Impact Assessments under the GDPR

Accountability is an important aspect of the General Data Protection Regulation (GDPR).  The accountability principle in Article 5(2) of the GDPR obliges data controllers to be able to demonstrate that they are complying with the data protection principles in Article 5(1) of the GDPR.  Some of the technical requirements placed upon data controllers within the GDPR can be traced back, at least in part, to the accountability principle.  One of the requirements of the GDPR which will assist data controllers to demonstrate compliance with the data protection principles is the requirement to complete, in certain circumstances, a Data Protection Impact Assessment (DPIA).

For a number of years supervisory authorities around the EU, including the UK Information Commissioner, have encouraged organisations to conduct a Privacy Impact Assessment (PIA) as part of their promotion of good data protection practice. DPIAs are simply PIAs by another name. The requirements for DPIAs are set out in Articles 35 and 36 of the GDPR.

When do I need to perform a DPIA?

Article 35(1) of the GDPR requires data controllers to conduct an assessment of the impact of envisaged processing operations on the protection of personal data, where a type of processing, in particular using new technologies; and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.  The DPIA must be conducted prior to undertaking the processing envisaged.

Article 35(3) sets out specific circumstances where a DPIA should be carried out by a data controller and those are:-

(a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;

(b) processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10; or

(c) a systematic monitoring of a publicly accessible area on a large scale.

When deciding whether a DPIA is required it will be important for data controllers to check the ICO’s website. The Information Commissioner is required to publish a list of the kind of processing operations which are subject to the requirement for a DPIA.  If the processing operations envisaged by a controller appear on this list, then they will be required to carry out a DPIA.  Article 35(5) also empowers the Information Commissioner (but does not require her) to establish and publish a list of the kind of processing operations for which no data protection impact assessment is required.

What does a DPIA require?

Article 35(7) sets out what the DPIA must include as a minimum; these are:-

  • a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller
  • an assessment of the necessity and proportionality of the processing operations in relation to the purposes
  • an assessment of the risks to the rights and freedoms of data subjects (the risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage – see recital 75 of the GDPR for more detail)
  • the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data; and to demonstrate compliance with the GDPR taking into account the rights and legitimate interests of data subjects and other persons concerned

It should be noted that requirements set out in Article 35(7) for the content of a DPIA are a minimum; there may be situations when a DPIA requires to go beyond what is set above.

The role of the Data Protection Officer

If you have appointed a Data Protection Officer, then Article 35(2) of the GDPR requires that you seek advice from them when carrying out a DPIA. It should be remembered that a DPIA might change a number of time during the process; you should therefore keep your DPO involved throughout and be seeking advice from them regularly at appropriate junctures. Seeking advice from the DPO is not simply a box ticking exercise and should therefore not be treated as such. If you treat it as a simple box-ticking you could find yourself not complying properly with the requirements of the GDPR and could potentially be missing out on valuable advice. Remember that controllers are not obliged to follow the advice of their DPO, but if they elect to act contrary to that advice then they should document this and could be required to defend that decision.

The Role of The Information Commissioner

I have already indicated that the Information Commissioner has a role in the DPIA process, but her role is more extensive than has already been covered above. There are circumstances, set out in Article 36 of the GDPR, in which controllers will be required to consult with the ICO.  This applies where, in the absence of any mitigating measures by the controller, the DPIA indicates that the processing would result in a high risk to the rights and freedoms of data subjects.

Within a period of 8 weeks following receipt of the request for consultation (but this may be extended by a further 6 weeks in appropriate cases) the Information Commissioner is required to provide written advice to the controller where she is of the opinion that the intended processing would infringe this Regulation.  It’s therefore important that you consult the Commissioner well in advance of undertakng the envisaged processing to ensure that you have enough time to receive any written advice from the Commissioner and to consider and apply it.

The Information Commissioner’s role does not end there; she is not simply limited to giving written advice to the controller.  She can also become much more involved by conducting a data protection audit; issuing a formal warning that the intended processing is likely to infringe the provisions of the GDPR and even limit or prohibit (temporarily or indefinitely) a data controller from undertaking the proposed processing.

Penalties

A failure by a controller to comply with its obligations to conduct a DPIA where one is required can attract an administrative fine of up to €10,000,000 or 2% of global turnover (whichever is greater); as can a failure to consult with the Information Commissioner where consultation is required under Article 36 of the GDPR.  Failure to comply with an order limiting or prohibiting the processing (whether temporary or indefinite) can attract an administrative fine of up to €20,000,000 or 4% of global turnover (whichever is greater).

Can I undertake a DPIA when one is not required by the GDPR?

Yes you can; a properly completed DPIA will be of assistance to you in demonstrating that you are complying the the data protection principles. A DIPA on its own will usually be insufficient to completely comply with the Artcile 5(2) obligations (even where it is required by Article 35), but a properly completed DPIA is certainly something that you can produce to the Information Commissioner to help evidence that you are taking your data protection obligations seriously.

Alistair Sloan

If you require advice or assistance with Data Protection Impact Assessments or any other data protection matter then contact Alistair Sloan on 0141 229 0880 or by E-mail. Alistair can also assist with other aspects of information law.

Data Protection/Privacy Enforcement: April 2018

In April the Information Commissioner’s Office published a number of enforcement measures taken against public and private organisations under both the Data Protection Act 1998 (“DPA”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  The key points to draw from the enforcement action this month should be familiar to anyone who has been reading this series of blog posts since it began in September.

Key Points

  • It is important to keep track of personal data, especially when it is sensitive personal data; if it is to be sent out of the organisation ensure that it is properly secured and that a record of it being sent and received is kept.
  • Before sending out information to your customers it is important to consider whether the information you are sending is properly business information (or information you’re required to give by law), or whether it is actually promotional or marketing material. If it’s promotional or marketing material ensure that you only send it to the E-mail addresses of people who have consented to receive promotional or marketing material from you.
  • Make sure that before you conduct a marketing campaign by telephone that you do not include numbers listed with the TPS unless you have the consent of the subscriber to contact them by phone for the purposes of direct marketing.
  • When disclosing information to someone, whether under FOI laws or not, ensure that you do not accidently disclose personal or sensitive personal data of third parties where you do not have legal grounds to do so. Be especially careful with pivot tables, a number of public authorities shave found themselves in regulatory hot water of the use of pivot tables. The ICO produced a helpful blog post in 2013 on the issue of pivot tables.
  • If you are an employee it is important that you remember that you should only be accessing personal data where you have a proper business need to do so and should only be disclosing personal data where you need to do so in order to properly perform your role. You can be held personally liable and find yourself being prosecuted in the criminal courts.

Enforcement action published by the ICO in April 2018

Humberside Police
The Information Commissioner, exercising her powers under section 55A of the DPA, served a Monetary Penalty Notice in the amount of £130,000 [pdf] for breaches of the DPA.  The force conducted an interview of a person alleging that they had been the victim of rape, on behalf of Cleveland Police. The interview was filmed and three copies of it existed: the master and two copies. The discs were unencrypted. They were to be sent to Cleveland Police, but were never received by Cleveland police. Humberside Police were unable to locate the discs or to confirm whether they had ever been posted to Cleveland Police.  The Commissioner found that Humberside Police had failed to comply with the seventh data protection principle and also paragraph 9 of Schedule 1 to the DPA.

Royal Mail Group Limited
The Information Commissioner served a Monetary Penalty Notice on Royal Mail Group Limited for contravening Regulation 22 of PECR.  The Monetary Penalty Notice was in the amount of £12,000 [pdf]. Royal Mail Group is the designated Universal Postal Service Provider in the UK and as such, it has certain statutory responsibilities to disseminate certain information. Royal Mail Group Limited sent E-mails to all of its customers, including those who had opted not to receive electronic marketing, to notify them of a change in price for second class parcels purchased online.  The price change was described as being a “promotional” one. The Commissioner found that this amounted to direct marketing rather than information that Royal Mail was obliged to provide under the Postal Services Act 2011 and was therefore in contravention of Regulation 22 of PECR.

The Royal Borough of Kensington and Chelsea
The Information Commissioner served a monetary penalty notice on the Royal Borough of Kensington and Chelsea in the amount of £130,000 [pdf] for breaches of the DPA. The breach arose out of a request for information made to the council pursuant to the Freedom of Information Act 2000. The Council answered the request for information by providing a pivot table to the requesters. The council did not properly redact the underlying information which was then accessible to the requesters without too much difficulty; the underlying information included personal data.

The Energy Saving Centre Limited
The Information Commissioner has served the Energy Saving Centre Limited with a Monetary Penalty Notice in the amount of £250,000 [pdf] and also with an Enforcement Notice [pdf] for contraventions of PECR.  The Commissioner had found that the Energy Saving Centre Limited had made tens of thousands of marketing calls to numbers which were listed with the Telephone Preference Service and where the individual subscribers to those numbers had not given consent to the Energy Saving Centre Limited to be contacted by phone for marketing purposes.  The Enforcement Notice requires the company to stop making unlawful calls – failure to comply with an Enforcement Notice is a criminal offence.

Approved Green Energy Solutions
The Information Commissioner has served a Monetary Penalty Notice [pdf] on an individual who traded as a sole trader under the name Approved Green Energy Solutions.  The amount of the penalty was £150,000. Approved Green Energy Solutions used a public telecommunications service to make in excess of 330,000 unsolicited telephone calls for the purpose of direct marketing where the line subscriber had listed their number with the Telephone Preference Service (“TPS”). The Commissioner and the TPS received 107 complaints directly from individuals affected.

Prosecutions
A former receptionist/general assistant at Milton Keynes University Hospital NHS Foundation Trust has bene prosecuted by the Information Commissioner after she inappropriately accessed the records of 12 patients when not required to do so in the course of her employment. The defendant entered a plea of guilty to offences of unlawfully accessing personal data and unlawfully disclosing personal data in breach of section 55 of the DPA. The Defendant was fined a total of £300 and ordered to pay a £30 victim surcharge.

Alistair Sloan

If you require advice and assistance in connection with any of the data protection/privacy issues above, or any other Information Law matter, please do contact Alistair Sloan on 0141 229 0880 or by sending him an E-mail directly.  You can also follow our dedicated information law twitter account.

The Information Commissioner’s power to compel information

The Information Commissioner is presently undertaking an investigation into the possible unlawful use of personal data, in particular, data analytics, by political parties and political campaigning organisations.  The most high profile activity that the Commissioner has undertaken in respect of that investigation has to be the obtaining and execution of a warrant to search the offices of Cambridge Analytica.  As part of that investigation it has been reported that a number of persons and organisations involved in politics have been served with Information Notices by the Information Commissioner, including the United Kingdom Independence Party (UKIP), Leave.EU and Arron Banks.

An Information Notice is a formal investigative tool which the Information Commissioner can use in order to gather information.  Her power to issue such notices, in respect of the processing of personal data, is to be found in section 43 of the Data Protection Act 1998.  There are two circumstances in which the Commissioner can issue an Information Notice:  (1) when conducting an assessment pursuant to section 42 of the Data Protection Act 1998; and (2) where the Commissioner reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles.  Broadly speaking this means that the Commissioner can issue an Information Notice either when her office is conducting an investigation at the request of a data subject or an investigation undertaken by her office which has been instigated by the Commissioner herself.

An Information Notice is simply a document which requires the data controller concerned to provide the Commissioner with information specified within the notice relating to the section 42 request or the controller’s compliance with the data protection principles.  However, its simplicity obscures its formality.  The issuing of an Information Notice is a formal step, and is a serious one for the recipient of the notice.  There is an automatic right of appeal against the notice or any part of the notice to the First-Tier Tribunal (Information Rights).  The right of appeal exists precisely because of its formality and the consequences for not complying with the notice.  It has been reported that UKIP has appealed the Information Notice served on it to the Tribunal.

An Information Notice is more than a polite request for information; it is a formal demand for information which is baked up by the threat of sanctions.  It is a criminal offence to fail to comply with an information notice which can result, if convicted, in a fine.  Furthermore, it is a criminal offence  to (i) make a statement in response to an information notice which is known to be false; or (ii) recklessly make a false statement in response to an information notice.

When serving an Information Notice, the Commissioner can specify or describe the information required by her or can be broader and instead specify or describe categories of information that she requires from the data controller.  There are some restrictions though on the information that the Commissioner can require a data controller to provide her with.  A data controller is not required to furnish the Commissioner with (a) “any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to the person’s obligations, liabilities or rights under [the Data Protection Act 1998]”, or (b) “any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of [the Data Protection Act 1998] (including proceedings before the Tribunal) and for the purposes of such proceedings.”

A data controller can also refuse to provide information which would reveal evidence of the commission of any offence.  However, there are some exceptions to this general exception; if the offence is an offence under the Data Protection Act 1998 or offences under certain statutory provisions concerning the giving of false evidence, then the data controller may still be required to provide the Commissioner with that information.

The serving of an Information Notice on a data controller is a significant step by the Commissioner and it is one that data controllers should not take lightly.  The consequences for failing to comply with the notice or for deliberately or recklessly misleading the Commissioner through the provision of false information can see the data controller facing criminal charges.  The Notice can be challenged through the First-Tier Tribunal (Information Rights) which could see part or all of the notice reduced/quashed.  The Data Protection Bill contains provisions in relation to Information Notices which are for the most part identical to the powers found within the Data Protection Act 1998 and so the Commissioner will continue to possess this potentially powerful took once the GDPR becomes a reality next month (subject, of course, to the Data Protection Bill completing is passage through parliament and receiving Royal Assent in time).

Alistair Sloan

If you are facing an investigation by the Information Commissioner in respect of alleged failures to comply with privacy and data protection law, or if you require advice on any other information law matter you can contact Alistair Sloan on 0141 229 0880.  Alternatively you can contact him directly by E-mail.  We also have a dedicated information law twitter account which you can follow.

NT1 and NT2: Forgetting past misdemeanors

The so-called ‘right to be forgotten’ (hereafter “RTBF”) is an often trumpeted aspect of the GDPR; it is an important right, but one that is rather more restricted in nature than is understood.  The RTBF is not a new right within he GDPR, but has foundation within current data protection law and practice.  On 13 March 2014, the Grand Chamber of the Court of Justice of the European Union gave its judgment in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”), which it has popularly been said created a ‘right to be forgotten’.  The court did not, in fact, grant a right to be forgotten; instead, the court required search engines, such as Google, to consider requests from individuals to have links to webpages concerning them de-listed from Google search results in certain circumstances.

Fast forward to 13th April 2018, a little over 4 years since the decision in Google Spain, Mr Justice Warby handed down his judgment in NT1 & NT 2 v Google LLC [2018] EWHC 799 (QB); cases which both concerned the RTBF.  NT1 and NT2 are both businessmen who were convicted of criminal offences.  In respect of NT1, he was involved in a controversial property business in the late 1980s and the early 1990s (while in his thirties).  In the late 1990s, while he was in his 40s, NT1 was prosecuted and convicted, after trial, of a criminal conspiracy connected with those business activities.  He was sentenced to a period of imprisonment and his conviction has since become “spent”.  In addition to the matters for which he was convicted, he was also accused of, but never prosecuted for, a separate conspiracy connected with the same business.  Some of the businesses former staff were eventually convicted in relation to that separate conspiracy.  There was media reporting of these and related matters at that time.  Links to that reporting are made available by Google in its search results.   On 28 June 2014, not long after the CJEU’s decision in Google Spain, NT1 made a de-listing request to Google in respect of six links.  Google agreed to block one link, but not the other 5.  Google stood by its position when NT 1 asked for them to reconsider their decision.  In January 2015, a second de-listing request was made by NT1, this time through his solicitors. Google replied to that de-listing enquiry in April 2015, refusing it.

NT2’s case is quite separate from that of NT1; the two claims were tried separately, but were heard one after the other and involved the same judge and the same representation.  NT2’s case has some similarity in terms of its facts and it raises similar issues of principle to that of NT1.  While in his 40s and sometime in the early 21st century, NT2 was involved in a controversial business which experienced public opposition in relation to its environmental practices.  NT2 pleaded guilty to two charges of conspiracy in connection with that business.  This was “rather more than ten years ago” [para 7].  NT2 received a short prison sentence and spent six weeks in custody before being released; his conviction also became spent.  On 14 April 2015, NT2 made a de-listing request to Google in respect of 8 links.  Google declined to de-list any of the links.

Ultimately, NT2 was successful in obtaining orders requiring Google to de-list while NT1 was unsuccessful.

Journalism, literature and art exemption

Google had, in its defence to these claims, sought to place reliance upon the exemption in section 32 of the Data Protection Act 1998, which relates to “journalism, literature and art”.  Warby J deals with this aspect of Google’s defence to the claims by the claimants in paragraphs 95-102 of the judgment.  Warby J ultimately rejected Google’s reliance upon section 32 holding that the exemption did not apply in the first place; but even if it did, Google would have failed to meet the part of the test which is contained in section 32(1)(b).  Warby J accepted that the EU law concept of journalism was a broad and elastic one which went beyond simply the activities of media undertakings and incorporates other activities which have as their aim the disclosure to the public of information, opinions and ideas. However, Warby J concluded that “the concept [of journalism] is not so elastic that it can be stretched to embrace every activity that has to do with conveying information or opinions. To label all such activity as “journalism” would be to elide the concept of journalism with that of communication.”

In Google Spain the CJEU was sceptical as to whether the exemption in Article 9 of the Directive (which is implemented through section 32 of the Data Protection Act 1998) would apply to an internet search engine such as Google.  Warby J noted that this observation by the CJEU was not integral to its decision in Google Spain; however, concluded that “it is true”.  Internet Search Engines do not, in the view of Wraby J, process personal data “only” for the purposes of journalism, literature or art.

In considering section 32 of the Data Protection Act 1998 Warby J concluded that there is a subjective and an objective element to each of section 32(1)(b) and (c).  In relation to section 32(1)(b) Warby J concluded that the data controller had to have a subjective belief that the publication of the personal data in question would be in the public interest and this belief must be objectively reasonable.  In respect of section 32(1)(c), Warby J considered that the data controller must prove that it had a subjective belief that compliance with the data protection principle(s) engaged would be incompatible with the special purpose and that belief must be one which is objectively reasonable.

Warby J explained in his judgment that if he was wrong in his conclusion that section 32 was not even engaged in this case, that he would have still rejected Google’s reliance upon it concluding that Google would have failed when it came to considering the test in section 32(1)(b).  There was no evidence, Warby J concluded, that “anyone at Google ever gave consideration to the public interest in continued publication of the URLs complained of, at any time before NT1 complained” [para 102]

Schedule 3 of the Data Protection Act 1998

Clearly a great deal of the personal data at issue in these claims, being personal data relating to criminal convictions, is sensitive personal data (see section 2 of the Data Protection Act 1998).  In order for processing of sensitive personal data to be in compliance with the first data protection principle, which requires personal data to be processed fairly and lawfully, the data controller must be able to rely upon one of the conditions in Schedule 3 to the Data Protection Act 1998 (in addition to one of the Schedule 2 conditions).  This is an area where Google had a great deal of difficulty.

Warby J rejected most of the Schedule 3 grounds that Google sought reliance upon (see paras 107-109).  However, in paragraph 110 of his decision, Warby J, decides that condition 5 in Schedule 3 was satisfied: “that “the information contained in the personal data has been made public as a result of steps deliberately taken by the data subject.” In reaching this conclusion, Warby J relies upon the decision of Stephens J in Townsend v Google Inc [2017] NIQB 81.  In Townsend, Stephens J concluded that as a consequence of the principle of open justice, when an offender commits an offence, even in private, he deliberately makes that information public (see para 65 of Townsend).  In NT1 and NT2, Counsel for the Claimants, Hugh Tomlinson QC, takes issue with the conclusions of Stephen J and Counsel’s arguments are set out briefly by Warby J towards the end of paragraph 110.  Warby J concludes that, in his view, that the reasoning of Mr. Tomlinson was not sound.

I must confess that I have a great deal of difficulty with the reasoning of Warby J and Stephens J on this point.  I struggle to see how the commission of an offence by an individual amounts to them taking positive steps to make the information public.  The conclusions of Warby J and Stephens J do not seem to me to fit with the statutory language in the Data Protection Act 1998 nor the language of the Directive which it implements.  Warby J considered that the language in Article 8.2(e) of the Data Protection Directive is “obscure”.  It seems to me that the language of the Directive is the complete antitheses of “obscure” and that section 32 does not adequately implement the requirements of the Directive in this regard.  The only UK jurisdiction yet to grapple with this issue is Scotland.  Neither the Northern Irish nor the English and Welsh court decisions are from appellate level courts.  For the time being we have two first instance courts in two jurisdictions reaching the same conclusion; that will undoubtedly be considered somewhat persuasive by other first instance judges.

The balancing exercise

The court in Google Spain required a balancing exercise to take place between the rights within the European Convention on Human Rights to a private and family life (Article 8) and freedom of expression (Article 10).  Following Google Spain the ‘Article 29 Working Party’ (soon to become the European Data Protection Board) issued guidance on the Google Spain decision.  These guidelines provide helpful assistance, but do not prescribe the factors which are to be taken into consideration; it is acceptable to go beyond the factors in the guidance [para 135].

In respect of NT1, Warby J attached some weight to the conduct of the Claimant post-conviction; in particular, NT1 had caused to be published about him on the internet (by a reputation management company known in the judgment by the fictitious name of ‘cleanup’) misleading statements about his character and integrity:  NT1 had been convicted of a substantial offence of dishonesty and had received a substantial prison sentence for that.  This can be contrasted with NT2 who had not been convicted of an offence of dishonesty, had entered a plea of guilty and had shown remorse.

The contrast is an interesting one because while each case will inevitably turn on its own facts, it shows the kind of issues that the court is likely to take into consideration when balancing the competing Article 8 and 10 rights.

Interaction between the Rehabilitation of Offenders Act and the Data Protection Act 1998

The Rehabilitation of Offenders Act 1974 (“ROA”) differs in Scotland from what is in force in England and Wales; of course, these claims deal with the ROA as it applies in England and Wales.  The differences in the substance of the Act do not, however, affect the principles which are in play when looking at the interaction between the ROA and data protection law.

The ROA creates a, somewhat limited, right to rehabilitation and Warby J concluded that this right to rehabilitation is an aspect of privacy law.  Warby J concluded that “[t]he rights and interests protected include the right to reputation, and the right to respect for family life and private life, including unhindered social interaction with others.” Furthermore, Warby J concluded that “[u]pholding the right [to rehabilitation] also tends to support a public or societal interest in the rehabilitation of offenders.”  Importantly though, the right to rehabilitation is a qualified right.  As with most cases involving rights, the rights of the offender to rehabilitation do come into conflict with the rights of others, in particular their rights to information and freedom of expression.

As a starting point, a person who is party to legal proceedings held in public (such as the accused in a criminal trial) does not have a reasonable expectation of privacy.  However, there may well come a point in time when they can have such an expectation.  The ROA works to prevent the disclosure of certain criminal offences for which a person has been convicted after a specified period of rehabilitation.  It does not, Warby J concluded, mean that in 1974 Parliament legislated for a right to privacy or confidentiality from the point at which the offence became “spent”.

The rehabilitated offender’s right to a family and private life in respect of a spent conviction will normally be a weighty factor against further use of disclosure of that information; however, it is not a conclusive factor.  The “balancing exercise will involve an assessment of the nature and extent of any actual or prospective harm. If the use or disclosure causes, or is likely to cause, serious or substantial interference with private or family life that will tend to add weight to the case for applying the general rule.” [para 166]

Paragraph 166 of Warby J’s judgment is well-worth reading in full for anyone who is involved in balancing exercises of this nature.

At the end of the day, de-indexing (or de-listing) from internet search results does not cause the information to disappear completely.  The effect that it has is to make the information more difficult to find.  It will still be possible for a person, with sufficient determination, to discover and access the information.  In the modern day world we are used to being able to put search terms into Google (and other search engines) and have millions, if not billions, of results returned to us in a fraction of a second.  The search engines have developed algorithms which help to bring the content that is seemingly most relevant to the top of those results with the seemingly least relevant placed at the end of the long list of results.  Information is much more readily available than it was in 1974; some might argue that cases such as NT1 and NT2 simply return the position back to something which more closely resembles 1974.

It is quite probable that we will begin to see cases like NT1 and NT2 arise more frequently.  The qualified right to erasure within the GDPR has attracted a lot of attention and individuals are certainly more aware of ‘the right to be forgotten’.  The GDPR arguably doesn’t take us forward from what was determined in Google Spain, but simply gives it a statutory basis as opposed to one that is derived mostly from case law.  The qualified right to erasure within the GDPR is, as noted above, often overstated and this will inevitably, in the event that people seek to enforce it more frequently, lead to disputes between controllers and data subjects.

Alistair Sloan

Should you require advice or assistance about UK Data Protection and Privacy law then contact Alistair Sloan on 0141 229 0880.  You can also contact him by E-mail.  You can also follow our dedicated Twitter account covering all Information Law matters:  @UKInfoLaw