Tag Archives: Article 10

Information Law Review of 2018

It does not seem as though it was a year ago since I sat down to write my review of Information Law in 2017 and to have a brief look ahead into 2018; but somehow we now appear to be in 2019. It was always going to be the case that 2018 was going to be a big year for information law; with the General Data Protection Regulation becoming applicable on 25th May 2018. The 25th May 2018 came and went without the millennium bug style apocalypse that seemed inevitable from the amount of sensationalist writing that was taking place in late 2017 and early 2018.

My review of 2017 started off with the English and Welsh High Court decision on vicarious liability for data protection breaches in Various Claimants v WM Morrisons Supermarket PLC  [2017] EWHC 3113 (QB)This case rumbled on in 2018 and it was considered by the Court of Appeal. The Court of Appeal heard the appeal and (in remarkably quick time) dismissed the appeal. It is understood that Morrisons have sought permission to appeal to the Supreme Court and if permission is granted it is possible that it will feature in a review of Information law in 2019.

In February, the English and Welsh High Court issued an interesting privacy judgment when it considered an action for compensation arising out of “Can’t Pay? We’ll Take it Away’; a fly-on-the wall documentary following High Court Enforcement Officers in their work enforcing court orders relating to debt and housing cases. The Court had the tricky job of balancing the privacy rights of individuals against the rights of television companies in respect of freedom of expression; however, the High Court decided that the balance in this particular case fell in favour of the claimant’s privacy rights. The High Court’s decision was appealed to the Court of Appeal; looking specifically at the issue of quantifying the level of damages. That appeal was heard by the Court of Appeal in early December and should provide useful guidance on calculating damages in the privacy sphere.

Facebook, Cambridge Analytical and Aggregate AIQ all featured quite heavily in 2018 in terms of privacy and data protection matters. Facebook was served with a monetary penalty in the amount of £500,000 for breaches of the Data Protection Act 1998 and Aggregate AIQ was also the recipient of the first Enforcement Notice under the Data Protection Act 2018 (which was narrowed in scope by the Information Commissioner following an appeal by AIQ; which was subsequently dropped). Facebook lodged an appeal against the Monetary Penalty Notice with the First-Tier Tribunal (Information Rights) in November 2018. If and when a decision is reached by the Tribunal in respect of that appeal, it will feature on this blog.

Arising out of the same wide-ranging investigation by the ICO as the Facebook penalty and the AIQ Enforcement Notice was an Information Notice served on the United Kingdom Independence Party (UKIP), which was appealed to the First-Tier Tribunal (Information Rights). The Tribunal dismissed the appeal by UKIP in July.

In April there was yet another important decision from the English and Welsh High Court in respect of Privacy and Data Protection. A little over four years after the European Court of Justice decision on the Right to Be Forgotten in Google Spain, Mr Justice Warby handed down his judgment in NT1 & NT2 v Google; this represented the first decision of a UK Court in respect of the Right to Be Forgotten. An appeal was lodged in respect of this case and was due to be heard just before Christmas; however, it was reported that the case was settled on the day of the appeal.

The issue of compensation to identifiable third parties in the context of data protection breaches was considered by the English and Welsh Court of Appeal. This case adds to the helpful privacy and data protection case law emanating from the English and Welsh courts.

Another interesting development that we saw during the course of 2018 was a director being disqualified indirectly in connection with privacy and data protection matters. It does show that directors can be held personally liable for privacy and data protection transgressions of limited companies. This was underlined by the amendments to the Privacy and Electronic Communications (EC Directive) Regulations 2003 which now enable the Commissioner to serve a monetary penalty on directors (and others associated with companies) in certain circumstances.

In Scotland, the Court of Session made new rules which should make appealing decisions of the Scottish Information Commissioner in respect of requests for environmental information more financially viable.

Litigation in respect information law matters in Scotland remains limited. The majority of litigation on these areas arises out of England and Wales. Perhaps in 2019, we will begin to see more litigation in Scotland on information law matters. Hopefully the new rules in the Court of Session will see more appeals in respect of the Environmental Information (Scotland) Regulations 2004 and hopefully the introduction of Group proceedings in the Court of Session through the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 will help with an increase in data protection and privacy litigation in Scotland.

In terms of 2018 Scottish cases, not long before Christmas the Court of Session treated us to a judgment in an appeal concerning vexatious requests under the Freedom of Information Scotland Act 2002. Beggs v Scottish Information Commissioner considered the correct approach to be taken when applying section 14(1) of the Freedom of Information (Scotland) Act 2002.

Looking ahead to 2019; the big issue on the horizon is Brexit. Much of what is discussed on this blog as “information law” derives from European law and so Brexit will likely have an impact upon that. We are still unsure as to the terms that we will be leaving on. A withdrawal Agreement has been negotiated between the European Union and the United Kingdom; however, there is  still a way to go with that – and it looks quite likely that the UK Parliament will rejected the Withdrawal Agreement in its current form. If we end up leaving with no Withdrawal Agreement in place then this will cause considerable difficulties for UK business which rely upon the transfer of personal data from elsewhere within the European Union; it will also cause problems for public bodies.

In terms of making the law work after Brexit, we were treated by the Government (in between Christmas and New Year) to a draft of The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. These Regulations will make changes to the GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 in light of the United Kingdom no longer being a member of the European Union. I will, of course, look at these draft Regulations in more detail soon.

I will attempt to address information law matters as they unfold in 2019 on the Information Law Blog from Inksters Solicitors.

Alistair Sloan

If you would like advice or assistance with Privacy and Data Protection matters or with UK and Scottish Freedom of Information requests contact Alistair Sloan on 0141 229 0880 or you can E-mail him.


Privacy v Freedom of Expression: ‘Can’t Pay? We’ll take it away’

Yesterday an interesting privacy judgment was handed down in the English High Court by Mr Justice Arnold.  The Claimants, Shakir Ali and Shahinda Aslam, brought proceedings against Channel 5 Broadcast Limited (“Channel 5”) for breaching their privacy in using footage of their eviction in the defendants’ television programme, ‘Can’t Pay?  We’ll take it away’.

‘Can’t Pay?  We’ll take it away’ is an observational documentary series broadcast by Channel 5 which follows the work of High Court Enforcement Agents.  The programme often features the evictions of tenants from residential premises by High Court Enforcement Agents and these agents pursuing debtors for the recovery of monies owed to their clients.  At Paragraph 58 of his judgment, Mr Justice Arnold states that the production company “wanted to show how the process which courts provided for the enforcement of debts and the reclaiming of property from debtors and tenants actually operated within ordinary peoples’ lives. He particularly wanted to show how landlords and creditors could expedite enforcement by moving the process from the County Court to the High Court, and the effect of this.”

The Claimants argued that they had a reasonable expectation of privacy and that this had been breached.  Meanwhile, the Defendants argued that the Claimants did not have a reasonable expectation of privacy.  Alternatively Channel 5 argued that if the Claimants did have a reasonable expectation of privacy, that was defeated by the Defendants’ rights to freedom of expression when the two were balanced against one another.  Channel 5 was responsible for selecting which enforcement actions that were filmed for the programme would actually appear in the television series.

On the day of the eviction, the Claimants were visited by two High Court Enforcement Agents; one of whom was in training and the other, Mr Paul Bohill, had more than 30 years’ experience as a High Court Enforcement Agent.  Only the first claimant was in the property when the Agents, together with a television film crew, arrived at the property to effect the eviction.  Certain information was supposed to be provided to those being filmed but the evidence proved that Mr Bohill actively prevented that information being given to the Claimants, even when the first claimant enquired about why it was being filmed.  Mr Justice Arnold covers the events of the eviction of the claimants, in detail, in paragraphs 70 – 115 of his judgment.

On 17th June 2015 the first claimant contacted the production company objecting to footage of his eviction being used in the television series.  He was told that they [the production company] needed to get their facts straight with regards to his benefits, but that his objections would be passed onto Channel 5 who made decisions about broadcast.

At paragraph 169 of his judgment, Mr Justice Arnold states that in his “judgment the principal factors relied upon by the Claimants do lead to the conclusion that they had a reasonable expectation of privacy in respect of the information in question. The Programme was largely filmed in their home; it showed them being evicted without prior warning; it showed them in a state of shock and distress; it showed them being taunted by Omar Ahmed; and it was foreseeable that the broadcasting of the Program me would have an adverse effect on their children. I do not accept that the open justice principle means that the Claimants’ Article 8 rights were not engaged. Open justice means that Channel 5 was entitled to report the facts that the courts had made the Order for Possession and issued the Writ of Possession and in consequence the Claimants had been lawfully evicted; but what happened in their home on 2 April 2015 was not part of the proceedings. Nor do I consider that the broadcasting of the information was an inevitable consequence of the Claimants’ failure to comply with the Order for Possession. Nor do I accept that Mr Ali’s Article 8 rights were  significantly weakened by his political activity.  Mrs Aslam had not engaged in political activity at all. I accept that the Claimants, and their children, had already suffered damage to their privacy as a result of the Ahmeds’ postings on social media, but I do not accept that this meant that the broadcasting of Programme either could not or did not inflict further damage given the substantial scale and duration of the broadcasting.”

In respect of the argument advanced on behalf of Channel 5, that Mr Ali had consented to being filmed, Mr Justice Arnold states that the consent was not “true consent”, was “an agreement to participate under protest” and “was not fully informed agreement given that he was not told anything about the programme that was being filmed or who would broadcast it or about the body cameras.” (paragraph 177).  In any event, Mr Justice Arnold held that “to the limited extent that he did give consent on 2 April 2015, he unequivocally withdrew that consent prior to the first broadcast of the Programme.” (paragraph 178).

Having found that the Claimants did have a reasonable expectation of privacy, it became necessary for the court to balance that against Channel 5’s rights to freedom of expression.  There was no dispute that there was a genuinely held belief by the production company and channel 5 that the programme was in the public interest; however, there was a dispute between the parties as to whether that was enough or whether it had to be assessed objectively.  Mr Justice Arnold concluded that it was clear that the court had to assess it objectively.

Channel 5 argued that “the programme addressed a number of matters of real public interest and concern: increasing levels of personal debt, and in particular rent arrears of tenants in privately-rented accommodation; the dependence of tenants on benefits, and in particular housing benefit; the effect of enforcement of writs of possession by HCEAs; and the consequences for both landlords and tenants. He further submitted that it was justified for Channel 5 to illustrate these matters by showing what happened to real people in real situations, because that was the best way to engage the public and stimulate debate.”

At paragraph 195, Mr Justice Arnold concludes that “the Programme did contribute to a debate of general interest, but…the inclusion of the Claimants’ private information in the Programme went beyond what was justified for that purpose…The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed [the landlord] and the Claimants. Moreover, that conflict had been encouraged by Mr Bohill…”

Mr Justice Arnold ultimately concluded that when balancing the rights of the Claimants to a private and family life against Channel 5’s rights to freedom of expression, the balance came down in favour of the Claimants’ Article 8 rights.  Each claimant was ultimately awarded £10,000 in damages.

This case raises a number of questions about similar style programmes regularly broadcast on television in the United Kingdom.  It is possible that Channel 5 might face claims from others featured in ‘Can’t Pay?  We’ll take it away’ arising out of the publicity that this judgment has received.  Of course, Channel 5 might well decide to appeal the decision; however, in the meantime broadcasters who broadcast similar style programmes and the production companies who make them ought to reflect upon the decision in the meantime and take it into account when making decisions about programming content of that nature.  It is clear that individuals in these situations do have a reasonable expectation of privacy.  There will be circumstances where the broadcasters’ freedom of expression will defeat the privacy rights of the individuals; however, there will need to be a genuine attempt to cover matters of public interest.  If it is simply for the prupose of entertainment, then broadcasters could find themselves being sued for breach of privacy if they do not have informed consent from the individuals featured (or do not take steps to protect the identities of those featured).

Alistair Sloan

If you would like advice or assistance in respect of a privacy/data protection issue or any other information law matter then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.