August tends to be a quiet month for lawyers. There has, however, been little by way of a summer break in privacy and data protection developments. Here are some August highlights.
Privacy injunction: sexual affairs of sportsman (not philosophers)
Mrs Justice Laing’s August does not appear to have begun restfully. Following a telephone hearing on the afternoon of Saturday 1 August, she granted what became a widely-reported privacy injunction (lasting only until 5 August) restraining the publication of a story about an affair which a prominent sportsman had some years ago: see the judgment in AMC and KLJ v News Group Newspapers  EWHC 2361 (QB).
As usual in such cases, Article 8 and Article 10 rights were relied upon to competing ends. There is no automatic favourite in such contests – an intense focus on the facts is required.
In this case, notwithstanding submissions about the extent to which the affected individuals ‘courted publicity’ or were not ‘private persons’ – there was a reasonable expectation of privacy about a secret sexual affair conducted years ago. The interference needed to be justified.
The right to free expression did not constitute adequate justification without more: “I cannot balance these two incommensurables [Articles 8 and 10] without asking why, and for what purposes, X and R seek to exercise their article 10 rights… The public interest here is, I remind myself, a contribution to a debate in the general interest”.
On the facts, there was insufficient public interest to justify that interference. The sportsman was not found to have hypocritically projected himself as ‘whiter than white’, and his alleged deceits and breaches of protocols in the coducting of his affair were not persuasive – especially years after the event. In any event, the sportsman was a role model for sportsmen or aspiring sportsmen: “he is not a role model for cooks, or for moral philosophers”. The latter point will no doubt be a weight off many a sporting shoulder.
Subject access requests: upcoming appeals
Subject access requests have traditionally received little attention in the courts. As with data protection matters more broadly, this is changing.
Holly Stout blogged earlier this month about the High Court’s judgment in Dawson-Damer and Ors v Taylor Wessing and Ors  EWHC 2366 (Ch). The case concerned legal professional privilege, manual records and relevant filing systems, disproportionate searches and the court’s discretion under section 7(9) DPA. That case is on its way to the Court of Appeal.
So too is the case of Ittihadieh  EWHC 1491 (QB), in which I appeared. That case concerned, among other issues, identification of relevant data controllers and the domestic purposes exemption. It too is on its way to the Court of Appeal.
Subject access requests: the burden of review and redaction
There has also been judgment this month in a County Court case in which I appeared for the Metropolitan Police Service. Mulcahy v MPS, a judgment of District Judge Langley in the Central London County Court, deals in part with the purposes behind a subject access request. It also deals with proportionality and burden, which – as Holly’s recent post discusses – has tended to be a vexed issue under the DPA (see Ezsias, Elliott, Dawson-Damer and the like).
Mulcahy deals with the proportionality of the burden imposed not so much by searching for information within the scope of a subject access request, but for reviewing (and, where necessary, redacting) that information before disclosure. This is an issue which commonly concerns data controllers. The judgment is available here: Mulcahy Judgment.
Privacy damages: Court of Appeal to hear Gulati appeal
May of 2015 saw Mr Justice Mann deliver a ground-breaking judgment on damages awards for privacy breaches: see Gulati & Ors v MGN Ltd  EWHC 1482 (Ch), which concerned victims of phone-hacking (including Paul Gascoigne and Sadie Frost). The awards ranged between £85,000 and £260,250. The judgment and grounds of appeal against the levels of damages awards are explained in this post by Louise Turner of RPC.
Earlier this month, the Court of Appeal granted MGN permission to appeal. The appeal is likely to be expedited. It will not be long before there is a measure of certainty on quantum for privacy breaches.
ICO monetary penalties
Lastly, I turn to privacy-related financial sanctions of a different kind. August has seen the ICO issue two monetary penalty notices.
One was for £50,000 against ‘Stop the Calls’ (ironically, a company which markets devices for blocking unwanted marketing calls) for serious contraventions of regulation 21 of the Privacy and Electronic Regulations 2003 (direct marketing phone calls to persons who registered their opposition to such calls with the Telephone Preference Service).
Another was for £180,000 for a breach of the seventh data protection principle. It was made against The Money Shop following a burglary in which an unencrypted server containing customers’ personal information was stolen.
Robin Hopkins @hopkinsrobin