The spamming industry is a decidedly irritating but sadly almost unavoidable feature of our networked world. There is no question but that spamming (i.e. the sending of unsolicited direct marketing electronic communications) constitutes an unlawful invasion of our privacy (see further regs 22-23 of the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (PECR), implemented under EU Directive 2002/21/EC). The question is what can be done to stop it, particularly given that individual citizens will typically not want to waste their time litigating over the odd spam email or text?

Well one way to address this problem would be to have an effective penalties regime in place, one that effectively kicked the spammers where it hurts by subjecting them to substantial financial penalties. No surprise then that, in 2009, the EU Directive which prohibits spamming was amended so as to require Member States to ensure that they had in place penalties regimes which were ‘effective proportionate and dissuasive’ (see Article 15a of the Directive). This provision in turn led to amendments to PECR which resulted in the monetary penalty regime provided for under s. 55A of the Data Protection Act 1998 being effectively incorporated into PECR. Readers of this blog will be aware of recent litigation over the application of s. 55A in the context of cases involving breaches of the DPA (see further the current leading case on this issue Central London Community Healthcare NHS Trust v Information Commissioner [2014] 1 Info LR 51, which you can read about here). But is the DPA monetary penalty regime really fit for purpose when it comes to dealing with spamming activities which are prohibited by PECR? If the recent decision by the Upper Tribunal in the case of Information Commissioner v Niebel is anything to go by, the answer to that question must be a resounding no.

The background to the Niebel case is as follows. Mr Niebel had sent out unsolicited text messages on an industrial scale. The texts sought out potential claimants in respect of misselling of PPI loans. The Information Commissioner, who had received hundreds of complaints about the texts, went on to issue Mr Niebel with a monetary penalty of £300,000. So far so unsurprising you might say. However, Mr Niebel has since managed to persuade the First-Tier Tribunal (FTT) to quash the penalty in its entirety (see its decision here) and now the Upper Tribunal (UT) has decided that the penalty should be left firmly quashed (see the UT’s decision here).

So how has Mr Niebel been able to avoid any penalty despite the patently unlawful nature of his activities? To answer that question one first has to understand the ostensibly high threshold which must be cleared if the power to impose a penalty is to be engaged. In short, the legislation only permits a penalty to be issued if there is ‘a serious contravention’ of the legislation (s. 55A(1)(a) and that contravention was ‘of a kind likely to cause substantial damage or substantial distress’ (s. 55A(1)(b) – there is also a knowledge requirement (s. 55A(1)(c)) however that requirement will typically be made out in the case of unlawful spammers). But can it really be said that the sending of relatively anodyne spam text message is ‘of a kind likely to cause recipients substantial damage or substantial distress’? Both the FTT and the UT have now firmly answered this question in the negative.

In the course of its decision, the UT considered the following arguments advanced by the Commissioner.

–        First, when deciding whether the contravention was ‘of a kind’ likely to cause substantial damage or substantial distress, it was possible to take into account not only the scale of the particular texts in issue but also the scale of Mr Niebel’s overall spamming operation. This was an important argument in the context of the appeal because, whilst there was no doubt that over time Mr Niebel had sent out hundreds of thousands of unsolicited communications, the Commissioner had identified ‘the contravention’ as relating only to 286 text messages in respect of which he had received complaints. (He had accepted that some 125 other complaints could not be taken into account as they related to communications sent prior to the coming into force of the penalties regime). The issue was therefore whether the wider context could be taken into account when deciding whether the contravention was ‘of a kind’ likely to cause substantial damage or substantial distress.

–        Second, the word ‘substantial’ in this context must be construed as meaning merely that the damage or distress was more than trivial. This is because the penalties regime was plainly intended to bite on unlawful spammers who caused low level damage or mere irritation, and such individuals would not be caught by the legislation if the word ‘substantial’ was construed as carrying any greater weight.

–        Third, the FTT had otherwise erred when it concluded that the 286 texts in issue were not of a kind likely to cause substantial damage or substantial distress.

On the first argument, the UT accepted that the scale of the contravention could be taken into account when deciding whether it was of a kind likely to cause substantial damage or substantial distress. However, it rejected the argument that Mr Niebel’s wider spamming activities were relevant to the analysis. The UT concluded that activities these did not form part of the ‘contravention’ relied upon by the Commissioner and were not therefore relevant to the analysis when it came to deciding whether s. 55A was engaged (para. 38).

On the second argument, the UT accepted Mr Niebel’s argument that it was not appropriate to try and deconstruct the meaning of the word ‘substantial’ and that the FTT had not erred when it had concluded simply that the question whether the substantial element was made out was ‘ultimately a question of fact and degree’ (paras. 42-51).

On the third argument, the UT held that the FTT’s decision that the 286 texts in issue were not of a kind to cause substantial damage was ‘simply unassailable’. The FTT had been entitled to conclude that the mere fact that recipients might have felt obliged to send ‘STOP’ messages to Mr Niebel did not amount to ‘substantial damage’ (para. 54). On the question of substantial distress, the FTT had been right to conclude that not all injury to feelings would amount to ‘distress’ and that irritation or frustration was not the same as distress. It concluded that there was nothing in the recent judgments in Halliday v Creation Consumer Finance or Vidal-Hall v Google which required a different result. Moreover, the UT was not prepared to accept that the FTT had failed to take into account evidence before it arguably suggesting that individual complainants were in fact substantially distressed by the messages. In the UT’s view the FTT had plainly been mindful of this evidence when it reached its conclusions (paras. 67-73).

Perhaps the most telling line in the judgment is to be found in paragraph 65 where the UT, having noted that the Commissioner had probably done all he could to draw Mr Niebel into the cross-hairs of the legislation, went on to conclude that the most profitable course would be for ‘the statutory test to be revisited with a view to making it better fit the objectives of the 2002 Directive (as amended). So, for example, a statutory test that was formulated in terms of e.g. annoyance, inconvenience and/or irritation, rather than “substantial damage or substantial distress”, might well have resulted in a different outcome. What cannot be doubted is that, absent a successful appeal against the UT’s decision, this legislation will need to be revisited so as to avoid a situation where the spammers end up laughing all the way to the bank whilst the penalties regime descends into obsolescence.

However, I should add that the picture is not altogether rosy for the spammers of this world. According to recent media reports, John Lewis has recently had to pay out damages to Roddy Mansfield, Sky News producer, after it sent him an unsolicited marketing email (see the Sky News report of the matter here – the report does not confirm the quantum of the damages). This rather raises the question of whether, in the face of an apparently deficient monetary penalty regime, the best cure for the disease of unlawful spamming might be to mount a group action.

The Niebel case was another 11KBW affair with Robin Hopkins acting for Mr Niebel and James Cornwell acting for the ICO.

Anya Proops

The issue of just how open our justice system should be is an issue which is or should be of fundamental concern to all practising lawyers. If, as Jeremy Bentham once stated ‘publicity is the very soul of justice’ (cited by Lord Shaw in the leading case of Scott v Scott [1913] AC 477), then an open justice system is the corporeal expression of that soul. However, we now live in times where open justice is increasingly under threat. Indeed, as last week’s headlines reminded us all, matters have now got to a stage where some judges at least have been prepared to allow, not merely the deployment of a limited closed procedure to deal with certain aspects of a case, but a completely secret trial. It no doubt came as a relief to many that the Court of Appeal was not prepared to sanction such a comprehensive departure from the open justice principle: Guardian News v AB CD. However, the mere fact that the judiciary was prepared to contemplate such a procedure shows how far we have come since the days of Scott v Scott.

Today the open justice principle is back before the Court of Appeal as it hears the case of Browning v IC & DBIS (the Court comprises Maurice Kay LJ (Vice President of the Court of Appeal, Civil Division), Patten LJ and McCombe LJ). This time the core issue for the Court of Appeal to determine is the extent to which secrecy in judicial proceedings is a necessary evil in the context of appeals concerning the application of the FOIA regime (see Robin Hopkins’ post about the Upper Tribunal decision being appealed here).

Of course, the starting point in such a case must be that the information which is itself the subject of the appeal (i.e. the disputed information) should be withheld from the applicant and the wider public pending the outcome of the appellate process. Were it otherwise, an applicant would be able to access information which the legislation had designated as exempt simply by mounting an appeal. Plainly this cannot be the right result and it is not the result which Mr Browning is seeking in his case. Rather the issue which arises in Browning is the extent to which other sensitive evidence and submissions, which the public authority wishes to advance in support of its case on appeal, can equally be shrouded in secrecy.

This is a major issue both for applicants, the media and the wider public. This is so for two reasons.

–        First, if an applicant is unable to gain access to key evidence relied upon by the public authority in support of its case on appeal, then inevitably they will be substantially handicapped in advancing their case on appeal. In effect, they are conducting the litigation blindfolded and with one arm tied behind their back. Even if they are given the gist of the evidence in question, typically the devil is in the detail, with the result that the applicant is unable to fathom the substance of the case being put against them. Faced with that scenario, the applicant can only hope that the tribunal, possibly with the assistance of the Commissioner, will itself have the imagination, legal acuity and strength of resolve to subject the public authority’s closed evidence and submissions to proper testing during the closed session.

–        Second, the adoption of closed procedures substantially prevents any rigorous public scrutiny of the ways in which the judiciary is discharging its functions in the context of FOIA appeals. If open justice is, as Lord Shaw put it in Scott v Scott ‘the keenest spur to [judicial] exertion and the surest of all guards against improbity’ then the adoption of closed procedures is the surest way to strip the public of what has been described as its constitutional right to put the judges on trial and ensure that they are discharging their functions in a just manner.

That the latter concern is of real practical importance has been illustrated not least in a recent case in which I acted on behalf of an applicant: Brown v Attorney General, which you can read about here. In Brown, which concerned a request to access a so-called judicial practice direction concerning the sealing of Royal wills, the Upper Tribunal refused Mr Brown permission to appeal against the First-Tier Tribunal’s decision. It was clear that, in refusing permission, the Upper Tribunal had relied heavily on closed material to which Mr Brown had not been privy, although its open written reasons did not indicate how consideration of the closed material warranted this result. However, when the issue of the legality of the Upper Tribunal’s decision came before the High Court by way of a judicial review claim brought by Mr Brown, the Court, which had not been provided with the closed material, readily granted permission for Mr Brown’s claim to proceed. Thereafter the Attorney-General conceded the claim with the result that the appeal against the First-Tier Tribunal’s decision is now due to be substantively heard by the Upper Tribunal. The lesson one draws from this case is that it cannot be presumed that tribunals which reach decisions based on their analysis of closed materials consistently get the approach right.

Of course, it might be said that the appellate process is itself sufficient to address this problem, as it was in the case of Brown. However, there are three difficulties with this argument. First, it presumes, rather unrealistically, that applicants will themselves always have the courage and resources to take their cases to the higher courts. Second, it fails to address the significant point that very often, as a result of their exclusion from the closed process, applicants will have little clue whether or not an appeal would have legs, which very often will deter an applicant from even contemplating an appeal and will in any event substantially inhibit the formulation of potentially relevant grounds of appeal. Third, it ignores the constitutional right of the wider public to scrutinise the judicial process. Significantly, members of the general public, including members of the media, will themselves have no right to appeal in a case in which they were not a party.

So there we have the problem. What is the solution? Well Mr Browning’s case is simple: (a) the tribunal should ensure at a minimum that it rigorously tests assertions by the public authority that particular evidence or particular submissions need to be dealt with on a closed basis (this should now in any event be happening on a routine basis in the tribunal) and (b) in cases where some evidence or submissions have to be dealt with as part of the closed process, the tribunal should allow the applicant’s legal representative to see any closed material and take part in any closed hearing, on condition that he or she does not disclose any part of the closed material to the applicant or any third party. (Interestingly, and by way of contrast, in the Guardian v ABCD case, in the course of the first instance hearing of the application for the trial to be conducted in secret, the court permitted counsel for the media to see relevant closed materials and participate in the closed part of the hearing).

In view of the conclusions reached by the Upper Tribunal, one can anticipate that that the ICO and DBIS, who both resist the appeal will argue: (a) that a core difficulty with an approach which permits the applicant’s representative to access the closed materials/closed session is that it lacks the procedural safeguards available, for example where ‘special advocates’ are used – see further the Upper Tribunal’s decision where reference is made for example to the risk that the applicant’s representative will inadvertently leak closed material to the applicant and, further, (b) that the inquisitorial manner in which the tribunal approaches the exercise of its functions substantially diminishes the pressure to involve the applicant’s representative in the closed part of the hearing.

It remains to be seen what the Court of Appeal will make of these arguments. However, no one can doubt the importance of this case, not only in terms of establishing the applicable procedural rules for the information tribunal, but also in terms of the wider constitutional vitality of the open justice principle.

11KBW’s Ben Hooper is acting for the ICO.

Anya Proops

Deciding whether information which arguably relates to an individual amounts to their ‘personal data’ for the purposes of s. 1(1) of the Data Protection Act 1998 is one of the more challenging aspects of the DPA regime. In making the judgment call in any particular case, data controllers have routinely looked to the guidance set out Auld LJ’s judgment in the well known case of Durant v Financial Services Act [2003] EWCA Civ 1746, [2011] 1 Info LR 1. In his judgment, Auld LJ indicated that there were two ‘notions’ likely to be of assistance when it came to determining whether particular data was sufficiently ‘personal’ that if tell within the scope of the DPA:

‘The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised.  The second is one of focus.  The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated.  In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.’ (§28)

Auld LJ’s conclusion that the information must be something which affects the data subject’s privacy is of course unsurprising. As is made clear by the recitals to Directive 95/46/EC (from which the DPA is derived), the core aim of the Directive is to protect our fundamental right to privacy in the context of the management of our data. If particular data does not meaningfully touch on our privacy, then in a sense why should it fall within the ambit of the legislation at all?

So what then is the position in respect of data which records a person’s name? Is that information automatically ‘personal data’ because it is a name which both in a sense identifies and relates to a particular individual? Or does that data have to arise in some form of context whereby it tells you something informative about that individual beyond merely what their name is? This was precisely the issue which the Court of Appeal had to consider in the recent case of Edem v IC & Financial Services Authority [2014] EWCA Civ 92.

In Edem, Mr Edem had made a number of complaints to the FSA concerning its regulation of a particular company. Mr Edem then sought disclosure from the FSA of information about him and his complaints. The sole issue which the Court of Appeal had to consider was whether information amounting to the names of three individuals within the FSA who had worked on the complaints constituted their ‘personal data’ under s. 1(1) DPA. The individuals in question were all junior employees who did not have public facing roles.

The Court of Appeal came down firmly in favour of the conclusion that the names per se constituted ‘personal data’. Moses LJ, with whom Beaton LJ and Underhill LJ agreed, held that:

‘A name is personal data unless it is so common that without further information, such as its use in a work context, a person would remain unidentifiable despite its disclosure’ (§20).

The Court of Appeal sought to reconcile this conclusion with the approach adopted by the Court of Appeal in Durant by saying that the Court of Appeal in Durant was looking at a different issue, namely whether information which did not on its face concern or name Mr Durant was still his personal data because it related to a complaint which he had made to the FSA (§§18-20). The Court went on to find that the ‘notions’ identified by Auld LJ in §28 of his judgment in Durant were of no relevance to a case where what was in issue was information comprising a person’s name, as that information was always intrinsically ‘personal data’, unless it was such a common name that considered on its own it had to be regarded as being effectively anonymous.

Importantly, the Court of Appeal went on to cite with approval the following extract from the Commissioner’s Technical Guidance on the definition of personal data:

‘“6.         It is important to remember that it is not always necessary to consider ‘biographical significance’ to determine whether data is personal data.  In many cases data may be personal data simply because its content is such that it is ‘obviously about’ an individual.  Alternatively, data may be personal data because it is clearly ‘linked to’ an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated.  You need to consider ‘biographical significance’ only where information is not ‘obviously about’ an individual or clearly ‘linked to’ him.”

The judgment is important for a number of reasons. First, it suggests that the Durant guidance must not be treated as embodying golden rules of universal application. This is likely to trouble many data controllers who have in the past approached Durant as it if had biblical authority. Second, it marks a clear judicial endorsement of the fairly generous approach to the construction of the term ‘personal data’ embodied in the ICO’s guidance. What remains to be seen is how the judgment will be held to apply to cases which do not involve such patently identifying information.

Robin Hopkins represented the ICO. Jason Coppel QC represented the Financial Conduct Authority.

Anya Proops

As I mentioned in my post last week, the case of T v Secretary of State for the Home Department, which concerns the legality of the current CRB regime, is shortly to be considered by the Supreme Court. The issue in T is whether the blanket requirement that criminal convictions and cautions must be disclosed in the context of an enhanced criminal record check (“ECRC”) undertaken for the purposes of certain types of employment (particularly employment with children or vulnerable adults), even though they are spent, is Article 8 compliant.

But what of cases where an accused has been through the criminal justice system only then to be acquitted of the alleged offenses? Should the data slate in respect of that individual be wiped clean, with the result that the allegations can never surface in the context of an ECRC? Answering that question brings into play the important maxim that, within the criminal justice system, one must be deemed innocent until proven guilty. However, balanced against that maxim, is the recognition that there will be cases where an accused was in fact guilty of the crimes alleged against them, albeit that the Crown was unable to prove that guilt beyond all reasonable doubt. Such individuals may well pose a substantial threat to society, despite their acquittal in the criminal courts. So how should the relevant disclosure bodies balance these competing considerations in the context of the ECRC scheme?

Earlier this year I blogged about two cases where the courts had considered this difficult question in respect of allegations of criminal conduct which had been made, but not proven, as against teachers. In the first case, R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin), the allegations against the teacher never reached the stage of a criminal prosecution. In the second case, RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service [2013] EWHC 1555 (Admin), the teacher was acquitted following a criminal trial (see my post here). In both cases, the court held that the inclusion in the relevant ECRCs of information relating to the allegations was unlawful as constituting an unjustified interference with the teacher’s Article 8 rights. A key feature of both of these judgments is that, in the court’s view, the police had acted unlawfully by effectively suggesting that the allegations had been well-founded, despite the lack of any criminal conviction. In a sense, these judgments are unsurprising. After all it cannot be right for the police to suggest that an individual is guilty of an offence when they have not been convicted of any offence following a criminal prosecution.

But does that mean that it will always be unlawful to disclose information about criminal allegations where those allegations have not culminated in a conviction? The recent judgment of the High Court in the case of R(AR) v Chief Constable of Greater Manchester Police & Secretary of State for the Home Department (Case No: CO/13845/2012) indicates that the answer to that question is no.

In AR, an individual who had previously worked as a taxi driver had been accused of raping a particular passenger. He had been acquitted following a criminal trial taking place in January 2011. In March 2012, the Criminal Records Bureau issued an ECRC in connection with an application made by AR for a licence as a private-hire driver. The ECRC made reference to the allegation of rape as against AR. It also confirmed that he had been acquitted following a trial before the Crown Court. AR sought a judicial review in connection with that certificate on the basis that it breached his Article 8 right to privacy. The High Court held that the certificate was unimpeachable. In reaching this conclusion, it is clear that the court was of the view that: (a) the certificate was itself a fairly balanced document and, further, (b) this was a case where the Chief Constable had properly recognised that, whilst the allegations against AR had not been proved to the criminal standard, there was sufficient evidence to suggest that they may yet be well founded and (c) it was reasonable and proportionate to include the allegations in the ECRC given the risk posed to vulnerable passengers if AR had in fact committed the crimes alleged against him.

The court also rejected arguments to the effect that the police’s retention of the data was unlawful under Article 8 and, further, that the police had acted unlawfully by not consulting AR prior to including the information in the ECRC. So far as data retention was concerned, the court held that the police had legitimate reasons for retaining the data both because it may be relevant if further allegations were made against AR and also because other matters could arise involving the complainant. On the procedural challenge relating to the lack of consultation, the court held that this was not well founded both because AR had had an opportunity to put his case in the context of an earlier comparable ECRC and because the police had in any event anticipated all the substantive arguments AR might have wanted to make.

Importantly therefore, an acquittal is not the get out of jail free card it might at first appear to be, certainly in terms of the accused’s data rights.

Jason Coppel QC, who is also acting in the T case, appeared for the Secretary of State.

Anya Proops

It has been a relatively quiet summer on the information law front. However, this has very much been the calm before the storm. Important up-coming hearings include not least:

–       Kennedy in the Supreme Court (application of the Article 10 right to freedom of expression in the context of FOIA; previously discussed on Panopticon here, here and here): hearing listed for 29-31 October;

–       T v Secretary of State for the Home Department in the Supreme Court (whether CRB disclosure regime is compatible with Article 8; Court of Appeal judgment previously discussed on Panopticon here): hearing listed for 9-10 December;

–       Edem v Information Commissioner & FSA in the Court of Appeal (appeal against Upper Tribunal FOIA decision that information comprising an individual’s name taken together with information as to their role within an organisation constitutes ‘personal data’, such that it may fall within the scope of s. 40 FOIA): hearing listed for 14 November;

 –       Central London Community Healthcare NHS Trust v Information Commissioner in the Upper Tribunal (appeal against the first ever tribunal decision on the imposition of a monetary penalty notice by the Information Commissioner under the DPA; see previous post on this case here): hearing listed for 16 and 17 October;

–       East Sussex County Council v Information Commissioner & Anor in the First-Tier Tribunal: hearing listed for 12-13 November 2013. The case in question is the fourth case to come before the tribunal concerning the imposition of charges by local authorities under the EIR for the provision of property search information – see further the tribunal decisions in East Riding of Yorkshire Council v IC, Kirklees Council v IC and Leeds City Council v IC. In the Leeds case, the Tribunal held that the relatively substantial charges which the Council had sought to impose were impermissible under the EIR. In reaching this conclusion, the Tribunal held that, under r. 8 EIR, a public authority was entitled to impose charges only in respect of the costs of transmitting the information to the applicant and was not entitled to charge for other costs such as the costs of searching for, retrieving and redacting the information. The Tribunal held that this conclusion was in keeping with the conclusions which had been reached by the ECJ in Commission v Germany (Case C-217/97) (the decision is discussed in more detail here). In East Sussex, both the Council and the Commissioner will be inviting the Tribunal to refer to the CJEU the question of the scope of a public authority’s power to charge applicants for environmental information, having regard to the relevant provisions in the Directive.

And in other news…

–       This week the First Tier Tribunal heard the first ever appeal against the imposition of a monetary penalty notice under the Privacy and Electronic Communications Regulations 2003. The appeal was brought by Tetrus Telecoms and concerned the sending of unsolicited text messages. You can read the relevant MPN here. A second set of appeals is due to be heard later on this year, this time concerning Nationwide Energy Services and We Claim U Gain Limited. It concerns the sending of unsolicited telephone calls (see the relevant MPN here). It will be interesting to see whether the Tribunal calibrates its approach depending on the type of communication in issue.

11KBW heavily dominates in all of the above cases. No doubt they will all be subject to further comment on Panopticon in due course.

Anya Proops

The First-Tier Tribunal has today issued its decision in the Scottish Borders Council monetary penalty notice case – the decision can be found on the tribunal’s website here (11KBW’s Robin Hopkins acted for the ICO). The background to the case is that the ICO had issued SBC with a monetary penalty notice requiring it to pay a penalty of £250,000. The penalty was issued in circumstances where a data processor, appointed by SBC to digitise its pension records, had ended up placing the hard copies of the records in the post box bins at Tesco and another supermarket. In total about 1,600 files had been disposed of in this way. SBC appealed against the imposition of the penalty to the Information Tribunal. The Tribunal held that the penalty was unlawful and, indeed, that the Commissioner had no power to issue a penalty under s. 55A DPA. This was because, whilst SBC had seriously contravened the DPA, the facts and circumstances of the case were such that the contravention was not of a kind likely to cause substantial damage or distress. Thus, an essential precondition for the engagement of the Commissioner’s power to issue a penalty under s. 55A had not been met. I am reluctant to comment further on this decision as I am shortly to be appearing against Timothy Pitt-Payne QC in the first ever appeal to the Upper Tribunal on the application of the monetary penalty regime (Central London Community Healthcare Trust NHS v IC). However, doubtless one of my colleagues will in due course provide illuminating analysis of this important decision.

Anya Proops