The FTT has granted an application by the Information Commissioner for an extension dated of the existing stay on information rights cases. On 27 April 2020, the Chamber President directed that the general stay be extended from 29 April until 27 May 2020 on the same terms.
First-Tier Tribunal suspends all information rights cases for 28 days
April 2nd, 2020 by Peter LockleyBy Directions dated 1 April 2020, the FTT has issued a general stay of ALL PROCEEDINGS under section 48 of the Data Protection Act 1998, section 162 of the Data Protection Act 2018 and section 57 of the Freedom of Information Act 2000, lasting 28 days from the date of the Directions. The stay will not apply to cases with specific directions issued on or after 1 April 28 days, and Parties can apply for a variation in a particular case, giving reasons and copying the Information Commissioner.
Please find the Notice here.
Some you might have missed
December 5th, 2019 by Peter LockleyBy which we mean: some that we did miss blogging about. With apologies and better late than nevers, here’s a round-up of three recent(ish) cases worthy of note. In R (Open Rights Group) v SSHD digital campaigners Open Rights Group and The3million (campaigning on behalf of so many EU Citizens living in the UK) challenged the immigration exemption – one of the few new features in the DPA 2018 that strengthens the controller’s hand – as incompatible with fundamental charter rights to privacy and protection of personal data. They also contended that it was too broad, vague and lacking in the safeguards required by the parent Article 23 GDPR (which enables Member States to enact domestic exemptions). Read more »
Don’t mention the bigger picture
June 29th, 2017 by Peter LockleyThe definition of ‘environmental information’ is notoriously wide. Notorious too is the difficulty of applying it and the lack of binding authority on how to go about the task.
To date the leading authority has been the Upper Tribunal’s decision in DECC v IC and Henney [2015] UKUT 0671 (AAC). Now we have BEIS v IC and Henney [2017] EWCA Civ 844. It’s the same appellant under a different name, and the same approach under a different label: in a nutshell, the Court of Appeal agreed with everything that the Upper Tribunal did, except for calling it ‘the bigger picture approach’. Read more »
Campaigning journalism is still journalism: Global Witness and s.32 DPA
December 23rd, 2014 by Peter LockleyIn an important development in the on-going saga of Steinmetz and others v Global Witness, the ICO has decided that the campaigning NGO is able to rely on the ‘journalism’ exemption under s.32 of the Data Protection Act 1998 (DPA).
The decision has major implications for journalists working both within and outside the mainstream media, not least because it makes clear that those engaged in campaigning journalism can potentially pray in aid the s. 32 exemption. Importantly, it also confirms that the Article 10 right to freedom of expression remains a significant right within the data protection field, notwithstanding recent developments, including Leveson and Google Spain, which have tended to place privacy rights centre-stage (Panopticons passim, maybe even ad nauseam).
Loyal readers will be familiar with the background to the Global Witness case, for which see original post by Jason Coppel QC.
In brief: Global Witness is an NGO which reports and campaigns on natural resource related corruption around the world. Global Witness is one of a number of organisations which has been reporting on allegations that a particular company, BSG Resources Ltd (“BSGR”), secured a major mining concession in Guinea through corrupt means. A number of individuals who are all in some way connected with BSGR (including Benny Steinmetz, reported to be its founder) brought claims against Global Witness under the DPA. The claims included a claim under s. 7 (failure to respond to subject access requests); s. 10 (obligation to cease processing in response to a damage and distress notification); s. 13 (claim for compensation for breach of the data protection principles) and s. 14 (claim for rectification of inaccurate data). Significantly, Mr Steinmetz alleged, amongst other things, that because he was personally so closely connected to BSGR, any information about BSGR amounted to his own personal data. If successful, the claims would have the effect of preventing Global Witness from investigating or publishing further reports on the Guinea corruption controversy.
Global Witness’s primary line of defence in the High Court proceedings was that all of the claims were misconceived because it was protected by the ‘journalism’ exemption provided for by s. 32 of the DPA. After a procedural spat in March (Panopticon report here), Global Witness’s application for a stay of the claims under s. 32(4) DPA was allowed by the High Court. The matter was then passed to the ICO for a possible determination under s.45 DPA. (In summary, such a determination will be made if the ICO concludes, against the data controller, either: (a) that the data controller is not processing the personal data only for the purposes of journalism or (b) it is not processing the data with a view to future publication of journalistic material).
In fact, the ICO declined to make a determination under s. 45. Moreover, he decided that, with respect to the subject access requests made by the claimants, Global Witness had been entitled to rely on the exemption afforded under s. 32. With respect to the latter conclusion, the ICO held that there were four questions which fell to be considered:
(1) whether the personal data is processed only for journalism, art or literature (s.32(1))
When dealing with this question, the ICO referred to his recent guidance Data Protection and journalism: a guide for the media, in which he accepted that non-media organisations could rely on the s.32 exemption, provided that the specific data in question were processed solely with a view to publishing information, opinions or ideas for general public consumption (p.30). He went on to conclude that this requirement could be met even where the publication is part of a wider campaign, provided that the data is not also used directly for the organisation’s other purposes (e.g. research or selling services). The ICO was satisfied that this condition was met for the data in question.
(2) whether that processing is taking place with a view to publication of some material (s.32(1)(a))
It is apparent from the decision letter that Global Witness was able to point to articles it had already published on the Simandou controversy, and since the controversy was on-going, to show it intended to publish more such articles. The ICO was satisfied that, in the circumstances, this second question should be answered in the affirmative.
(3) whether the data controller has a reasonable belief that publication is in the public interest (s.32(1)(b))
The ICO emphasised that the question he had to ask himself was not whether, judged objectively, the publication was in the public interest, but rather whether Global Witness reasonably believed publication was in the public interest. In the circumstances of this case – small NGO shines a spotlight on activities of large multinational in one of the world’s poorest countries amid allegations of serious corruption – he readily accepted that Global Witness held such a belief, particularly as the data related to the data subjects’ professional activities, for which they in any event had a lower expectation of privacy than in relation to their private lives.
(4) whether the data controller has a reasonable belief that compliance is incompatible with journalism. (s.32(1)(c))
Again, the focus here was on Global Witness’ reasonable beliefs. The ICO accepted that Global Witness had reasonable concerns that complying with the subject access requests which had been made by the claimants would prejudice its journalistic activity in two ways:, first, by giving the data subjects advance warning of the nature and direction of Global Witness’ investigations, which could be used to thwarting effect and, second, by creating an environment in which the organisation’s sources might lose confidence in Global Witness’ ability to protect their identities.
The decision will no doubt substantially reassure campaigning and investigative journalists everywhere. Unsurprisingly, it has been widely reported in the media (see e.g. Guardian article, Times article and FT article here). Notably, the FT reports that the claimants are asserting that they intend to challenge the decision. We will have to wait until the New Year to discover whether these assertions translate into action and, if they do translate into action, what form that action will take.
Anya Proops of 11KBW acts for Global Witness.
Peter Lockley