Experian v ICO – Upper Tribunal dismisses ICO appeal

By way of a judgment given in February 2023, the First-Tier Tribunal substantially upheld Experian’s appeal against an enforcement notice which the ICO had issued to Experian in connection with the data processing activities it undertook in the context of providing data services to clients in support of their offline marketing activities. The Upper Tribunal has today dismissed the ICO’s appeal against the FTT’s judgment: you can access a copy of the judgment together with the Upper Tribunal’s press summary here. I won’t comment further on the judgment here other than to say that further more detailed commentary on the Upper Tribunal’s judgment will doubtless follow on Panopticon in due course.

I acted for Experian, leading Robin Hopkins, instructed by Linklaters LLP. The ICO was represented by Tim Pitt-Payne KC, leading Christopher Knight

Anya Proops KC

Online safety – Ofcom speaks (in a new panopticon podcast)

For those of you who are interested in all things online safety related, you may wish to note that Chambers has just released our latest Panopticon Podcast, in which I interview Jon Higham, Online Safety Policy Director at Ofcom, about Ofcom’s new regulatory role under the Online Safety Act 2023. I’m still working on capturing that perfect Mishal Husain vibe but we cover a lot of ground in the interview and Jon is a really interesting and insightful speaker, so this is definitely one to enjoy over your mid-morning coffee. You can catch the episode on AppleSpotifyPodcast Index and Podchaser. The podcast is a companion piece to the podcast interview I recorded along with my colleague, Leo Davidson, about the OSA in November 2023. As ever, we welcome any feedback you may have about our adventures in the world of podcastland.

Anya Proops KC

Online safety – dawn of a new era

Yesterday the Online Safety Bill received assent in the House of Lords, meaning it is now ready to become law. It is anticipated that the Bill will receive Royal Assent in the course of October 2023. So it is that the UK stands on the brink of a new era in internet regulation, one which is intended fundamentally to improve the health and wellbeing of the nation by making the internet a safer, less hazardous environment for all.

And how, you may well ask, is this improvement to be achieved? Well, in the most basic terms, the Online Safety Bill (soon to be the Online Safety Act) seeks to make the internet a safer place by: (a) converting those online intermediaries who host and index online content – including most obviously social media providers and online search engines – into the digital caretakers of the online world, making them subject to a wide array of duties of care with respect to the content they respectively host or index and, further, (b) charging Ofcom with responsibility for ensuring that online intermediaries are discharging these duties of care in practice. Continue reading

President Biden moves on online harms

For those of you waiting with baited breath to see what will happen with the UK Online Safety Bill (currently at the Committee Stage in the House of Commons), you may like to note that only last week President Biden signed a Presidential Memorandum establishing the ‘White House Task Force to Address Online Harassment and Abuse’, which task force it appears will be focussing particularly on online harms which ‘disproportionately affect women, girls, people of color, and LGBTQI+ individuals, with ‘technology-facilitated gender-based violence’ it seems being the top priority. This is perhaps an unsurprising move by President Biden, given his liberal credentials, and it no doubt reflects a growing unease within liberal circles in the US about the ways in which the internet can be used to generate violent and oppressive conditions for women in the US (including women operating within the sphere of politics). Continue reading

A war of words: EU sanctions and the blocking of online ‘disinformation’

The decision by Western powers to fight the war in Ukraine through swingeing sanctions regimes is widely regarded as a hugely powerful demonstration of the West’s unified commitment to the championing of liberal democratic values, in the face of an amoral totalitarian aggressor. However, an important question which falls to be answered is whether those regimes may ironically also pose a threat to the very values they are seeking to defend, particularly insofar as they operate so as to curb media and online freedoms; free expression of course being one of the cornerstones of any liberal democracy. This question has now become very hard-edged, particularly as a result of the interpretation which the EU Commission is apparently placing on particular EU sanctions legislation embodied in EU Regulation 2022/350 (“the Regulation”). Continue reading

Duchess of Sussex v Associated News Ltd – the Court of Appeal Rules

The Court of Appeal has today refused an appeal by Associated News against the decision of Mr Justice (now Lord Justice) Warby to grant the Duchess of Sussex summary judgment in respect of her claim for breach of privacy rights and breach of copyright against Associated. This is an important judgment on the interplay between privacy and free speech rights, not to mention the application of copyright law, and so bears some detailed consideration. Continue reading