Data protection in the Court of Appeal & the right to be forgotten

January 31st, 2018

For all those of you who are currently wading through the quagmire of GDPR compliance and are pining for some diverting news, you might like to note that the Court of Appeal will be hearing a number of important data protection appeals over the course of this year. They include appeals in the following cases:

  • DB v General Medical Council (application of mixed data provisions in s. 7 DPA) – due to be heard in March 2018,
  • TLT v Home Office (accidental online disclosure of information relating to asylum seekers) – due to be heard in April 2018 – (note, the appeal does not address the quantum of the awards made in that case but instead focuses on the question of whether compensation ought in principle to have been awarded to individuals who were not referred to by name in the disclosed spreadsheet but who were nonetheless affected by the disclosure);
  • Stunt v Associated Newspapers (challenge to the stay mechanism under s. 32 DPA) – due to be heard in June 2018 and, last but most certainly not least,
  • Various Claimants v WM Morrison Supermarket PLC (group litigation data breach case) – due to be heard by the Court of Appeal before the end of 2018.

All this is to say nothing of the fact that, in February and March 2018, the High Court is due to hear two right to be forgotten cases brought in respect of Google’s refusal to deindex webpages referring to two individuals with spent convictions: NT1 v Google and NT2 v Google. There has already been a preliminary hearing in NT1 before Nicklin J on the question of whether the court should make restrictive reporting orders. That hearing was adjourned so as to allow an intervention by the media (see here). Interestingly, in the course of his judgment on the adjournment of the RRO issue, Nicklin J commented that: ‘These two claims will be the first cases in England & Wales in which the right to be forgotten will be considered by the Court.’ However, as readers of this blog will be aware the right to be forgotten has in fact come before the High Court in the context of at least one judicial review challenge to the ICO’s decision not to take enforcement action against Google (see further my posts on the Khasaba case here and here). Moreover, the right was centrally in issue in the County Court case of Edwards v BBC & Ors (as discussed in Chris Knight’s post here). That said, it is certainly right to say that there has been no judicial consideration of the important question of the relationship between the right to rehabilitation and the public’s right to know in the context of the right to be forgotten regime, and that will obviously be the central question in the NT1/NT2 cases.

Anya Proops QC

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