The Supreme Court has today handed down a judgment which has very significant ramifications for the operation of the veto regime by the Government in connection with FOIA and EIR cases: R(Evans) v Attorney General. It marks a great victory for the Guardian in its 10 year struggle to gain access to correspondence written by HRH Prince Charles to various government departments. But more than this, it marks an important milestone in the development of FOI jurisprudence, as our highest court makes clear that, when it comes to the application of FOIA, Government cannot trump the decisions of the courts merely because it takes a different view of the facts of the case.

In short, the Supreme Court has held: (a) by a 5:2 majority that the veto issued under FOIA by the AG in respect of the Upper Tribunal’s order that the correspondence should be disclosed was unlawful and (b) by a 6:1 majority that provisions in the EIR which permit the Government to issue a veto in cases falling within the scope of the environmental information access regime were invalid, as they are incompatible with the EU Directive on public access to environmental information (2003/4/EC). The Supreme Court’s Press Summary, which contains a useful summary of the judgment, can be found here.

Posts containing careful analysis of the judgment will undoubtedly follow on Panopticon. 11KBW’s Karen Steyn QC appeared for the Attorney General. Timothy Pitt-Payne QC appeared for the ICO.

Anya Proops

The Catt and T cases are both concerned with this important question: to what extent may the police lawfully retain records relating to individuals who have not in fact been arrested or charged in connection with any criminal offence. The Supreme Court has now had its say on this question – see the judgment here.

The background to the appeal is very helpfully set out in this earlier post. In short, Mr Catt (C) is a peaceful protestor who participated in an anti-arms trade protest conducted by a group called Smash-EDO. Smash-EDO is associated with violent crime. The police overtly recorded information about individuals attending Smash EDO demonstrations, including C. The police went on to retain information about C, including his name, address and information confirming his presence at a particular protest. The data was stored on the police’s Domestic Extremism Database. T is an individual who is alleged to have made a homophobic comment to a neighbour’s friend. The police sent her a ‘Prevention of Harassment’ letter warning her that she could be liable to arrest and prosecution should she commit any act amounting to harassment. The letter was originally retained on the police’s files in accordance with its policy that such correspondence should be retained for 7 years. However, in point of fact, the letter sent to T was destroyed after only two and half years.

The High Court dismissed claims made by C and T that the police’s act of retaining their data constituted a breach of their Article 8 rights. The Court of Appeal allowed the claimants’ appeal, reversing the High Court’s judgment. Now the Court of Appeal’s judgment has itself been reversed by the Supreme Court which, in summary, held that whilst retention of the data interfered with the claimants’ Article 8 rights, the retention was justified under Article 8(2). The core question which the Supreme Court had to address was the proportionality of the retention, particularly having regard to the fact that neither claimant had actually been arrested or charged with any offence.

Mr Catt’s case – The judgment in C’s case was a majority judgment, with Lord Toulson dissenting. In terms of the majority (Lords Sumption, Mance and Neuberger and Lady Hale), it is clear that the judges were of the view that the retention of C’s data was not disproportionate because:

• the level of intrusion with C’s privacy rights was minimal, particularly given that:
  • the information in question is not intimate or sensitive;
  • it related to C’s activities in a public forum – the recorded facts were in that sense in the public domain;
  • there are tight constraints on the uses to which the data may be put (essentially they may only be used for police purposes and are subject to a strict review/deletion policy
• moreover, it would require disproportionate effort for the police to have to weed out this type of record from its other records.
• by way of contrast, the benefits to be obtained from retaining the data were potentially substantial and included enabling the police to develop a detailed intelligence picture of organisations prepared to engage in violent crime

Lord Toulson took a different view of the proportionality issues. In essence, he concluded that the information in question was unlikely to add much value in terms of meeting policing objectives and, further, that the weeding exercise would not be unduly onerous, particularly given that the police regularly had to undertake such weeding exercises in any event.

T’s case – In T’s case, the majority (Lady Hale, Lord Toulson and Lord Mance) were of the view that the retention policy in issue was lawful. Lady Hale and Lord Toulson both made the point that retention of such information over an extended period of time was important, particularly in terms of dealing effectively with domestic abuse cases. By way of contrast, Lord Sumption was of the view that such a lengthy retention period was disproportionate, particularly given the trivial nature of the incident in question. However, on the facts relating to T’s case, he held that it was not disproportionate for the police to have retained the letter for the relatively short period of 2.5 years. Thus, he concurred with the conclusion that the appeal should be allowed.

A key point emerging from the judgment, and indeed the litigation history of these appeals, is that there is no perfect science when it comes to applying the proportionality principle. Instead, the exercise of assessing proportionality is inherently impressionistic, as is illustrated by the wide divergence of views expressed by the judges in the High Court, Court of Appeal and the Supreme Court. It is understood that the claimants will now seek to have the case referred to the European Court of Human Rights. So we may yet see another reversal of fortunes in this interesting and important litigation.

Jason Coppel QC and Robin Hopkins appeared for the Secretary of State for the Home Department, who intervened in the appeal.

Anya Proops

The extent to which privacy and data protection rights can effectively resonate within the online environment is an acutely important issue for all information law practitioners. Moreover, it is an issue which seems to be gaining ever increasing traction in the litigation context, as is illustrated not least by the following developments.

• As most readers of this blog will know, last year the CJEU sent shock waves through the information law community when it held, in Google Spain, that EU data protection legislation operated so as to enable the so-called ‘right to be forgotten’ to be asserted against Google. (That principle is due to receive further consideration from our domestic courts in the forthcoming case of Max Mosley v Google – see Robin’s post on the Mosley case here).
• Then we had the judgment of the High Court in Vidal-Hall v Google, where the court concluded, in the face of a jurisdictional defence mounted by Google, that claims brought against Google concerning its tracking of the internet browsing habits of users could properly proceed. (An appeal against the High Court’s judgment in that case is due to be heard by the Court of Appeal on 2^nd or 3^rd March – the ICO is intervening in support of the claimants’ case).
• Now the High Court in Northern Ireland has given judgment in an important case involving a compensation claim made against Facebook: CG v Facebook & Anor [2015] NIQB 11.

Key aspects of the CG judgment are as follows:

• The claim was brought by a convicted paedophile in respect of a series of postings placed on Facebook by third parties, one of whom had been named as second defendant to the claims. The postings not only included data amounting to vituperative name-calling but also repeated incitements to violence in respect of the claimant.
• The High Court held that Facebook was liable in respect of the postings, particularly on the basis that it had misused the claimant’s private information by failing to delete the postings after Facebook’s attention had been drawn to their existence.
• The High Court rejected Facebook’s assertion that its liability in respect of the postings was excluded on an application of the Electronic Commerce (EC Directive) Regulations 2002. On this issue, the court held that: (a) the Regulations only immunise the relevant information society service (ISS) against liability if the ISS has no actual or constructive knowledge of the unlawful activity on its site or, if it has acquired that knowledge, it acts expeditiously to remove or disable access to the relevant information and (b) Facebook could not rely on the Regulations in the present case because, after being notified of the relevant postings, Facebook had failed to remove or disable access to them.
• The second defendant, an individual who was responsible for one of the disputed postings, was liable for misuse of the claimant’s private information in his capacity as primary publisher. He was also liable for harassment under the Protection from Harassment Act.
• As for the claim under the DPA 1998, which was brought only against Facebook and not against the second defendant, that claim could not proceed because, on an application of s. 5 DPA 1998, the claim fell outside of the territorial ambit of the legislation. (Notably no reference was made in this context to the CJEU’s approach to territorial ambit under the data protection Directive in the Google Spain case).
• Whilst no DPA claim was pleaded against the second defendant, the court made the following points about the application of the journalistic exemption contained in s. 32 DPA:
  • The court noted that the Claimant had conceded that the second defendant’s activities in posting material on Facebook might about to ‘journalism’.
  • However, the court went on to conclude there was no scope for the second defendant to rely on the journalistic exemption contained in s. 32 DPA 1998. This was particularly because the second defendant could not have had any ‘reasonable’ belief that his publications were in the public interest for the purposes of s. 32(1)(b).
•  The claimant was awarded £20,000 in compensation in respect of his claim for misuse of private information.

What is interesting and important about the CG judgment is that it reinforces the point that organisations which operate merely so as to facilitate online freedom of expression can no longer safely assume that they are always operating in the stratosphere, far above the mire of the privacy litigation battlefield. Instead, they must appreciate that those rights are sufficiently flexible and powerful that they can potentially draw such organisations firmly into the fray.

Anya Proops

Hot of the press – Readers of this blog will be aware of the wonderful saga involving Mr Kennedy and his tireless quest to gain access to information held by the Charity Commission. I have been told today that, having lost his appeal before the Supreme Court (see the relevant Panopticon post here), Mr Kennedy is now seeking to bring the case before the European Court of Human Rights. An application has been lodged and Mr Kennedy is now awaiting a decision on admissibility. All of which means that we may yet see the Strasbourg Court having its say on the vexed question of whether s. 32 FOIA, as currently framed, is compatible with the Art 10 right to receive information. For further updates, watch this space.

Anya Proops

The debates over whether the CJEU’s judgment in Google Spain represents an unjustified attack on free speech rights have raged for months now. Interestingly, it seems that some judges at the local level at least are proving somewhat resistant to this highly privacy-centred judgment. Thus, according to online reports, in recent weeks a Dutch preliminary court has apparently held that a man convicted of a serious offence dating back over some years could not rely on Google Spain to have the links to websites referring to the offence excised. According to reports about the judgment (which seems only to be available in Dutch), the court held that information revealing that someone has committed an offence has relevance notwithstanding its vintage and, as such, should not be de-indexed by Google (see here). Outside of Europe, a judge sitting in the Israeli magistrate’s court has apparently refused to countenance a claim against Google based on the so-called right to be forgotten. According to a report in the Israel Hayom online newspaper, the judge held that imposing an obligation on Google to de-index results, even if they were defamatory, would entail converting Google unjustifiably into a ‘super-censor’ (see the report here). It will be interesting to see how the English courts, with their strong tradition of upholding free speech rights, will in due course seek to navigate their way through the challenging jurisprudential landscape set by the CJEU in Google Spain.

Anya Proops

The question of how far tribunals should go in terms of allowing evidence and submissions to be dealt with on a closed basis in FOIA appeals is one that looms large for all FOIA practitioners. Judge Nicolas Warren, the President of the First-Tier Tribunal (Information Rights) has now drafted and circulated to all FTT judges a checklist for dealing with closed proceedings under rule 14 of the Tribunal rules. Not being one to keep the public in the dark about such judicial guidance, Judge Warren has kindly agreed to the checklist being reproduced in full on the blog – see further below:

General Regulatory Chamber (Information Rights) – Rule 14 Check list

1. Has Rule 14 been correctly applied so far?  Should any closed material be made open?
2. Is it necessary to hold part of the hearing in closed or do the closed written submissions suffice?
3. Explain purpose of closed hearing to requestor.
4. Ask requestor if there are any questions he or she particularly wants the Tribunal to put.  If requestor legally represented then the questions should be in writing.
5. Is the hearing recorded?  If so, the closed session must also be recorded but separately and with the cd sealed and a note that it must not be opened with the permission of the Tribunal or the UT.
6. During the closed session, keep a running note of anything new that is said which could properly be said in open session.
7. At the conclusion of the closed session, agree with the representatives what is to be said to the requestor on return to open by way of:- (a) a gist of what must remain closed. (b)anything new that could have been said in open.
8. In draft decision include an account of the procedure adopted and indicate what use if any was made of the closed material.

It is clear that this guidance is intended to increase the rigour and care with which tribunals approach the issue of closed hearings and, hence, to intensify compliance with natural justice principles. For further discussion of closed procedures in the information tribunal see further my previous posts on the Court of Appeal case of Browning here and here.

Anya Proops