Author: Christopher Knight

Googling Orgies – Thrashing out the Liability of Search Engines

Posted on | by Christopher Knight

Back in 2008, the late lamented News of the World published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”. It had obtained footage of an orgy involving Max Mosley and five ladies of dubious virtue, all of whom were undoubtedly (despite the News of the World having blocked out their faces) not Mrs Mosley. The breach of privacy proceedings before Eady J (Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)) established that the ‘Nazi’ allegation was unfounded and unfair, that the footage was filmed by a camera secreted in “such clothing as [one of the prostitutes] was wearing” (at [5]), and also the more genteel fact that even S&M ‘prison-themed’ orgies stop for a tea break (at [4]), rather like a pleasant afternoon’s cricket, but with a rather different thwack of willow on leather.

Since that time, Mr Mosley’s desire to protect his privacy and allow the public to forget his penchant for themed tea breaks has led him to bring or fund ever more litigation, whilst simultaneously managing to remind as many people as possible of the original incident. His latest trip to the High Court concerns the inevitable fact of the internet age that the photographs and footage obtained and published by the News of the World remain readily available for those in possession of a keyboard and a strong enough constitution. They may not be on a scale of popularity as last year’s iCloud hacks, but they can be found.

Alighting upon the ruling of the CJEU in Google Spain that a search engine is a data controller for the purposes of the Data Protection Directive (95/46/EC) (on which see the analysis here), Mr Mosley claimed that Google was obliged, under section 10 of the Data Protection Act 1998, to prevent processing of his personal data where he served a notice requesting it to do so, in particular by not blocking access to the images and footage which constitute his personal data. He also alleged misuse of private information. Google denied both claims and sought to strike them out. The misuse of private information claim being (or soon to be) withdrawn, Mitting J declined to strike out the DPA claim: Mosley v Google Inc [2015] EWHC 59 (QB). He has, however, stayed the claim for damages under section 13 pending the Court of Appeal’s decision in Vidal-Hall v Google (on which see the analysis here).

Google ran a cunning defence to what, post-Google Spain, might be said to be a strong claim on the part of a data subject. It relied on Directive 2000/31/EC, the E-Commerce Directive. Article 13 protects internet service providers from liability for the cached storage of information, providing they do not modify the information. Mitting J was content to find that by storing the images as thumbnails, Google was not thereby modifying the information in any relevant sense: at [41]. Article 15 of the E-Commerce Directive also prohibits the imposition of a general obligation on internet service providers to monitor the information they transmit or store.

The problem for Mitting J was how to resolve the interaction between the E-Commerce Directive and the Data Protection Directive; the latter of which gives a data subject rights which apparently extend to cached information held by internet service providers which the former of which apparently absolves them of legal responsibility for. It was pointed out that recital (14) and article 1.5(b) of the E-Commerce Directive appeared to make that instrument subject to the Data Protection Directive. It was also noted that Google’s argument did not sit very comfortably with the judgment (or at least the effect of the judgment) of the CJEU in Google Spain.

Mitting J indicated that there were only two possible answers: either the Data Protection Directive formed a comprehensive code, or the two must be read in harmony and given full effect to: at [45]. His “provisional preference is for the second one”: at [46]. Unfortunately, the judgment does not then go on to consider why that is so, or more importantly, how both Directives can be read in harmony and given full effect to. Of course, on a strike out application provisional views are inevitable, but it leaves rather a lot of legal work for the trial judge, and one might think that it would be difficult to resolve the interaction without a reference to the CJEU. What, for example, is the point of absolving Google of liability for cached information if that does not apply to any personal data claims, which will be a good way of re-framing libel/privacy claims to get around Article 13?

The Court also doubted that Google’s technology really meant that it would have to engage in active monitoring, contrary to Article 15, because they may be able to do so without “disproportionate effort or expense”: at [54]. That too was something for the trial judge to consider.

So, while the judgment of Mitting J is an interesting interlude in the ongoing Mosley litigation saga, the final word certainly awaits a full trial (and/or any appeal by Google), and possibly a reference. All the judgment decides is that Mr Mosley’s claim is not so hopeless it should not go to trial. Headlines reading ‘Google Takes a Beating (with a break for tea)’ would be premature. But the indications given by Mitting J are not favourable to Google, and it may well be that the footage of Mr Mosley will not be long for the internet.

Christopher Knight

New President of the GRC

Posted on | by Christopher Knight

The Ministry of Justice has today announced the new President of the General Regulatory Chamber to be Judge Peter Lane. He will take up his post on 15 December, replacing Judge Nicholas Warren, who is retiring.

As President of the GRC, Judge Lane will doubtless hear a fair share of Information Rights appeals – as his predecessor did – and will have some familiarity with the regime from his time in the last four years or so sitting in the Upper Tribunal.

Panopticon wishes Judge Lane all the best in his new role (in which guise many Panopticonners will doubtless see more of him), and Judge Warren all the best in his retirement.

Christopher Knight

Good Things Come to Those Who (Have Inherent) Weight

Posted on | by Christopher Knight

Philosophically, everything must have an inherent weight. Otherwise it would have no weight at all. But FOIA is not concerned with philosophy; it is much more concerned with who is in charge of the sheep dip, and indeed the levels of public funding for the sheep being dipped. (No points for spotting that reference, Bruce.) As a result, there are often debates in the FOIA case law about whether a particular qualified exemption contains an inherent weight, i.e. is the fact that the exemption is engaged at all sufficient to place some weight in the public interest balance against disclosure? The answer varies according to the particular exemption.

In Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC), the Cabinet Office appealed against a decision of the FTT that the number of times the Reducing Regulation Committee has met should be disclosed. This apparently supremely uninteresting piece of information was withheld in reliance on section 35(1)(b) FOIA, which provides a qualified exemption for information relating to Ministerial communications. The Cabinet Office argued that the FTT had erred in not ascribing an inherent weight to section 35(1)(b), and also that it had misunderstood aspects of the evidence on prejudice presented to it.

The appeal in fact succeeded on the second ground, because Judge Turnbull took the view that the FTT had misunderstood an aspect of the evidence being given to it  – even though it had got it right in other places – and was not sufficiently sure that that would make no difference, so that the case was remitted. That aspect is very fact-specific and unlikely to be of much wider interest, except possibly to avid watchers of the Reducing Regulation Committee.

The Cabinet Office did not succeed on its first ground. Under the existing state of the jurisprudence, section 35(1)(c) (advice of Law Officers) has some inherent weight (HM Treasury v Information Commissioner [2009] EWHC 1811; [2010] QB 563) but that section 35(1)(a) (formulation of Government policy) does not (OGC v Information Commissioner [2008] EWHC 774 (Admin)). Section 42 (legal professional privilege) also has some inherent weight: DBERR v O’Brien [2009] EWHC 164 (QB). Judge Turnbull concluded at [47]-[70] that there was no inherent weight in the section 35(1)(b) exemption. He reasoned that there were a variety of policy justifications underpinning the various limbs of section 35, and they did not all overlap. The fact that the information has merely to “relate to” Ministerial communications means that the exemption could be engaged without bringing into play to any significant extent any of the public policy considerations underlying the exemption. It was not obvious how the information in issue would undermine the convention of collective Cabinet responsibility, or have an effect of the future behaviour of Ministers. The section 35(1)(c) exemption was narrower in that it was more likely that the information would engage the central policy justification for the exemption, but that where it did not there may be situations where even the exemption in s.35(1)(c) can be engaged without any necessary assumption of some inherent weight (see at [61]). Section 42 was different because it did not include the words “relate to” and any disclosure would undermine the single policy justification of protecting privileged access to legal advice.

Judge Turnbull’s analysis at [67] was to set out a test which is more nuanced and contextual than simply an assertion of inherent weight:

“I think that some confusion and apparent contradiction has been introduced into the case law by formulating the question as being whether the exemption in a particular subsection of section 35(1) carries inherent weight. In my judgment it is preferable (i) to consider to what extent the public interest factors potentially underlying the relevant exemption are in play in the particular case and then (ii) to consider what weight attaches to those factors, on the particular facts.”

As a result, the FTT had not erred in law. (In fact, the Cabinet Office had not made the argument before the FTT that there should be an inherent weight in section 35(1)(b). That was evidently the correct position to have taken.) It is difficult to argue with the reasoning of Judge Turnbull, and the judgment is a helpful clarification of the law under sections 35(1)(a) and (b), although it perhaps makes the situation slightly less clear in relation to (c), given the reinterpretation of HM Treasury to allow for less/no inherent weight in more tangential cases. The only surprise is that Lord Steyn’s much cited adage from R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] that “in the law, context is everything” did not get another outing.

Robin Hopkins appeared for the ICO.

Christopher Knight

The Government wants to get your PECR up

Posted on | by Christopher Knight

You – yes, you! – are entitled to FREE compensation! Our records – what records? Magic records! – show that you were missold PPI and can now claim thousands of pounds!

If you haven’t ever had a text message or a phone call along these lines, then you are either managing to live as a hermit or you are extraordinarily lucky. Most of us face spam texts and nuisance cold-calls as a daily fact of life. They are a regular source of irritation and annoyance. They are also blatantly illegal, particularly if you have signed up to the Telephone Preference Service. See: regs 22-23 of the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (“PECR”), implemented under EU Directive 2002/21/EC.

Unfortunately, the nature of such communications means that it will not be very often that they are a source of “substantial damage or substantial distress”. Yet, that is the test which must be met in order for the Information Commisisoner to impose a monetary penalty notice (“MPN”): section 55A(1) of the Data Protection Act 1998 (implemented as the enforcement regime for PECR as well in a fit of slightly lazy ‘joined-up’ thinking).

As readers of this blog will know, the Upper Tribunal’s interpretation of the MPN regime as applied to PECR in Information Commissioner v Niebel [2014] UKUT 255 (AAC) has had the effect that it will be almost impossible for the ICO to establish substantial damage or distress in spam text message cases (see Anya Proops’ detailed comment here). It is certainly the case that the door remains more ajar in relation to nuisance calls – which by their nature are much more likely to cause genuine distress to some individuals – and the ICO is dealing with a couple of MPN appeals to establish how ajar, but Niebel casts a baleful shadow.

But, to the east, a new dawn may be rising. If the ICO’s war against the orc-like forces of spam is reminscient of the Battle of Helms Deep (and I think we can all agree that it is), then the Secretary of State for Culture, Media and Sport, Sajid Javid, is Gandalf, appearing with the remains of the Rohirrim on the morning of fifth day to turn the tide. For the DCMS has just launched a consultation exercise on amending PECR with a view to altering the test from “substantial damage or distress” to causing “annoyance, inconvenience or anxiety”. On its face, that change will be much more easily met and give PECR some teeth, as well as better implementing the Directive, which did not require anything so high as the section 55A test. The consultation paper can be found here, and the period for responding closes on December 7th. So once you have had fun allocating characters to the players in this area (Is Ed Vaizey Peregrine Took? Is Christopher Graham, the ICO, Aragorn? Is our own Robin Hopkins, counsel for Mr ‘Spamalot’ Niebel, Grima Wormtongue?), do respond to the consultation.

Update

Few areas of the law have such informed and coherent bloggers as information and data protection law, and not surprisingly, the PECR consultation has been grist to the commentariat mill. But at least one leading blogger, Jon Baines, has made the point that the Government’s (and the ICO’s) preferred option from the consultation is actually to remove the threshold entirely. He is right (and however formidable I may be – thanks Jon – I should have made that point). That is what the consultation paper says under option 3 (removing any harm threshold at all). Although it is also fair to say that it is slightly surprising that that is the preferred option, as the rest of the consultation paper appears to be drafted around the utility of adopting the “annoyance, inconvenience or anxiety” threshold. Not only is that what the Government says on the consultation page of its website, but paragraphs 16-20 of the paper (under the heading ‘The Proposal’) talk expressing in terms of the ‘annoyance’ threshold (and cross-refer to that being the test used by Ofcom). At paragraphs 44-45 of the paper the ICO appears to have provided evidence on the different actions it could have taken under an ‘annoyance’ test. Nowhere until the options are presented is it suggested that the talk of “lowering the threshold” might mean removing the threshold altogether. Which might just be an oversight. Or it might indicate that consulting on a preferred no harm option is one of those kite-flying efforts Sir Stephen Sedley warned of in the LRB. Either way, the reader is left less than clear as to what DCMS or the ICO really want.

(Apologies for the lack of LOTR references in this update. To make up for it, do enjoy this video of Ian McKellen explaining to schoolkids why they should revise for their exams. You’re welcome.)

Christopher Knight

Local Government Transparency Code – Updated

Posted on | by Christopher Knight

Back in May 2014 the Secretary of State for Communities and Local Government issued the Local Government Transparency Code, and I briefly blogged about that here.

Now, an updated version of the Code dated October 2014 has been issued. Unaccountably, its publication appears to have been overshadowed by Kevin Pietersen’s autobiography, but it might perhaps be unfair to engage in a game of parallels, identifying for example who the “Big Cheese” would be at DCLG. The October 2014 Code is materially the same as its May predecessor (but fully replaces it) and it may assist if my earlier comments are set out again here (with amendments and updated cross-references).

The Code is issued in exercise of the Secretary of State’s powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related.

The Code sets out in some detail in Part 2 the type of information held by local authorities which must be published (some of it annually). This is designed to replicate the requirements prescribed in the Local Government (Transparency) (Descriptions of Information) (England) Order 2014. Part 3 sets out the information which, in the view of the Secretary of State, ought to be published. A helpful Annex A provides the details in tabular form.

Paragraph 17 of the Code provides that: “Where information would otherwise fall within one of the exemptions from disclosure under the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Infrastructure for Spatial Information in the European Community Regulations 2009 or falls within Schedule 12A to the Local Government Act 1972 then it is in the discretion of the local authority whether or not to rely on that exemption or publish the data.” There is therefore no attempt to override the FOIA exemptions. But where a qualified exemption applies, the appearance of the requested information in one of the categories set out in the Code will have a role (possibly a significant role) in establishing the public interest in support of disclosure. Of course, where the Secretary of State as required – in Part 2 – information to be published, it should be published by the local authority. Any reliance on a qualified exemption will be doomed to fail. Information falling within the scope of Part 3 is also likely to face an uphill struggle to be withheld under FOIA/EIR, but it will be context dependent.

The main substantive difference between the May and October Codes is that the new one has added three datasets to the list of information which must be published: namely information about how the authority delivers waste services, use the parking revenue it collects and tackles fraud.

 

One development between May and October is that the DCLG have obviously been faced with a barrage of questions from concerned Councils. In an attempt to assist, DCLG has also published an accompanying FAQ Guide to the Code, which may help those attempting to practically apply the new Code with what the DCLG was trying to do in particular circumstances.

Christopher Knight

Information Tribunal Consultation

Posted on | by Christopher Knight

The Senior President of Tribunals, Sullivan LJ, has launched a consultation paper on altering the composition of the First-tier Tribunal (General Regulatory Chamber) in some Information Rights cases. With the support of GRC Chamber President, Judge Warren, it is proposed to remove the requirement that a judge sit with two non-legal members and allow the Chamber President flexibility to direct that certain cases be heard by a judge alone.

From the consultation document, it does not appear that the formal Composition Practice Statement will set out itself when non-legal members will be used, but the Chamber President’s anticipation is stated to be that a judge alone will be used in more procedural cases, such as whether the information is held, or time limit issues, or whether the cost of compliance limits are breached, or whether the information is readily accessible by other means. A single judge may also be used where the judge is already familiar with the evidence because of previous involvement with the case and all parties are content that a decision should be taken without a hearing. Other cases, and therefore questions of the balance of the public interest, will continue to be heard by a panel of three.

Consultation responses are to be sent by 3 October 2014.

The details of the questions, and the address for responses, can be found in the consultation paper here.

Christopher Knight