Author: Robin Hopkins

DRIPA 2014 declared unlawful

Posted on | by Robin Hopkins

In a judgment of the Divisional Court handed down this morning, Bean LJ and Collins J have declared section 1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) to be unlawful.

For the background to that legislation, see our posts on Digital Rights Ireland and then on the UK’s response, i.e. passing DRIPA in an attempt to preserve data retention powers.

That attempt has today suffered a serious setback via the successful challenges brought by the MPs David Davis and Tom Watson, as well as Messrs Brice and Lewis. The Divisional Court did, however, suspend the effect of its order until after 31 March 2016, so as to give Parliament time to consider how to put things right.

Analysis to follow in due course, but for now, here is the judgment: Davis Watson Judgment.

Robin Hopkins @hopkinsrobin

Google and the ordinary person’s right to be forgotten

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The Guardian has reported today on data emerging from Google about how it has implemented the Google Spain ‘right to be forgotten’ principle over the past year or so: see this very interesting article by Julia Powles.

While the data is rough-and-ready, it appears to indicate that the vast majority of RTBF requests actioned by Google have concerned ‘ordinary people’. By that I mean people who are neither famous nor infamous, and who seek not to have high-public-interest stories erased from history, but to have low-public-interest personal information removed from the fingertips of anyone who cares to Google their name. Okay, that explanation here is itself rough-and-ready, but you get the point: most RTBF requests come not from Max Mosley types, but from Mario Costeja González types (he being the man who brought the Google Spain complaint in the first place).

As Julia Powles points out, today’s rough-and-ready is thus far the best we have to go on in terms of understanding how the RTBF is actually working in practice. There is very little transparency on this. Blame for that opaqueness cannot fairly be levelled only at Google and its ilk – though, as the Powles articles argues, they may have a vested interest in maintaining that opaqueness. Opaqueness was inevitable following a judgment like Google Spain, and European regulators have, perhaps forgivably, not yet produced detailed guidance at a European level on how the public can expect such requests to be dealt with. In the UK, the ICO has given guidance (see here) and initiated complaints process (see here).

Today’s data suggests to me that a further reason for this opaqueness is the ‘ordinary person’ factor: the Max Mosleys of the world tend to litigate (and then settle) when they are dissatisfied, but the ordinary person tends not to (Mr González being an exception). We remain largely in the dark about how this web-shaping issue works.

So: the ordinary person is most in need of transparent RTBF rules, but least equipped to fight for them.

How might that be resolved? Options seem to me to include some combination of (a) clear regulatory guidance, tested in the courts, (b) litigation by a Max Mosley-type figure which runs its course, (c) litigation by more Mr González figures (i.e. ordinary individuals), (d) litigation by groups of ordinary people (as in Vidal Hall, for example) – or perhaps (e) litigation by members of the media who object to their stories disappearing from Google searches.

The RTBF is still in its infancy. Google may be its own judge for now, but one imagines not for long.

Robin Hopkins @hopkinsrobin

Austria will not host Europe vs Facebook showdown

Posted on | by Robin Hopkins

As illustrated by Anya Proops’ recent post on a Hungarian case currently before the CJEU, the territorial jurisdiction of European data protection law can raise difficult questions.

Such questions have bitten hard in the Europe vs Facebook litigation. Max Schrems, an Austrian law graduate, is spearheading a massive class action in which some 25,000 Facebook users allege numerous data protection violations by the social media giant. Those include: unlawful obtaining of personal data (including via plug-ins and “like” buttons); invalid consent to Facebook’s processing of users’ personal data; use of personal data for impermissible purposes, including the unlawful analysing of data/profiling of users (“the Defendant analyses the data available on every user and tries to explore users’ interests, preferences and circumstances…”); unlawful sharing of personal data with third parties and third-party applications. The details of the claim are here.

Importantly, however, the claim is against Facebook Ireland Ltd, a subsidiary of the Californian-based Facebook Inc. The class action has been brought in Austria.

Facebook challenged the Austrian court’s jurisdiction. Last week, it received a judgment in its favour from the Viennese Regional Civil Court. The Court said it lacks jurisdiction in part because Mr Schrems is not deemed to be a ‘consumer’ of Facebook’s services. In part also, it lacks jurisdiction because Austria is not the right place to be bringing the claim. Facebook argued that the claim should be brought either in Ireland or in California, and the Court agreed.

Mr Schrems has announced his intention to appeal. In the meantime, the Austrian decision will continue to raise both eyebrows and questions, particularly given that a number of other judgments in recent years have seen European courts accepting jurisdiction to hear claims against social media companies (such as Google: see Vidal-Hall, for example) based elsewhere.

The Austrian decision also highlights the difficulties of the ‘one-stop shop’ principle which remains part of the draft Data Protection Regulation (albeit in more nuanced and complicated formulation than had earlier been proposed). In short, why should an Austrian user have to sue in Ireland?

Panopticon will report on any developments in this case in due course. It will also report on the other strand of Mr Schrems’ privacy campaign, namely his challenge to the lawfulness of the Safe Harbour regime for the transferring of personal data to the USA. That challenge has been heard by the CJEU, and the Advocate General’s opinion is imminent. The case will have major implications for those whose business involves transatlantic data transfers.

Robin Hopkins @hopkinsrobin

Disclosing child protection information: make sure you ask the right questions first

Posted on | by Robin Hopkins

High-profile revelations in recent years illustrate the importance of public authorities sharing information on individuals who are of concern in relation to child protection matters. When inaccurate information is shared, however, the consequences for the individual can be calamitous.

AB v Chief Constable of Hampshire Constabulary [2015] EWHC 1238 (Admin) is a recent High Court judgment (Jeremy Baker J) which explores the implications of such inaccurate disclosures. The case is not only about inaccuracies per se, but about why those inaccuracies were not picked up before the disclosure was made.

Perhaps the most notable point from the judgment is this: if such a disclosure is to be necessary, then the data controller must take care to ask themselves reasonable questions about that information, check it against other obvious sources, and make necessary enquiries before disclosure takes place.

In other words, failure to ask the right questions can lead to the wrong course of action in privacy terms. Here is how that principle played out in the AB case.

Background

In 2010, AB was summarily dismissed from his job as a science teacher for inappropriate comments and conduct with potential sexual undertones, as well as a failure to maintain an appropriately professional boundary with students. His appeal against dismissal failed. The Independent Safeguarding Authority, however, decided not to include AB on its barred lists. The General Teaching Council also investigated AB, but it did not find that the allegations of improper conduct were made out.

AB’s dismissal, however, came to the attention of a member of the child abuse investigation public protection unit of the Hampshire Constabulary. Enquiries were made of the college, and certain email correspondence and records were generated and retained on police systems.

Later the following year, AB was offered a teaching job elsewhere. This came to the police’s attention in 2013. There was internal discussion within the police about this. One officer said in an email that, among other things (i) AB had also been dismissed from another school, and (ii) AB’s 2010 dismissal had involved inappropriate touching between himself and pupils. There was no evidence that either of those points was true. That email concluded “From What I’ve been told he should be nowhere near female students. I will put an intel report in on [AB]”.

The above information was passed to the Local Authority Designated Officer (‘LADO’) and in turn to the school, who terminated AB’s employment. He then made a subject access request under the DPA, by which he learnt of the above communication, and also the source of that information, which was said to be a notebook containing a police officer’s notes from 2010 (which did not in fact record either (i) or (ii) above). AB complained of the disclosure and also of the relevant officer’s failures to follow the requisite safeguarding procedures. The police dismissed his complaint.

The Court’s judgment

AB sought judicial review of both the disclosure of the inaccurate email in the email, and of the dismissal of his complaint about the police officer’s conduct in his reporting of the matter.

The Court (Jeremy Baker J) granted the application on both issues. I focus here on the first, namely the lawfulness of the disclosure in terms of Article 8 ECHR.

Was the disclosure “in accordance with the law” for Article 8 purposes?

The Court considered the key authorities in this – by now quite well-developed – area of law (Article 8 in the context of disclosures by the police), notably:

MM v United Kingdom [2010] ECHR 1588 (the retention and disclosure of information relating to an individual by a public authority engages Article 8, and must therefore be justified under Article 8(2));

Tysiac v Poland (2007) 45 EHRR 42, where the ECtHR stressed the importance of procedural safeguards to protecting individuals’ Article 8 rights from unlawful interference by public bodies;

R v Chief Constable of North Wales Ex. Parte Thorpe [1999] QB 396: a decision about whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one. “Disclosure should only be made when there is a pressing need for that disclosure”);

R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410: such cases are essentially about proportionality;

R (A) v Chief Constable of Kent [2013] EWCA Civ 1706: such a disclosure is often “in practice the end of any opportunity for the individual to be employed in an area for which an [Enhanced Criminal Record Certificate] is required. Balancing the risks of non-disclosure to the interests of the members of the vulnerable group against the right of the individual concerned to respect for his or her private life is a particularly sensitive and difficult exercise where the allegations have not been substantiated and are strongly denied”;

R (T) v Chief Constable of Greater Manchester Police & others [2015] AC 49 and R (Catt) v ACPO [2015] 2 WLR 664 on whether disclosures by police were in accordance with the law and proportionate.

The Court concluded that, in light of the above authorities, the disclosure made in AB’s case was “in accordance with the law”. It was made under the disclosure regime made up of: Part V of the Police Act 1997, the Home Office’s Statutory Disclosure Guidance on enhanced criminal records certificates, section 10 of the Children Act 2004 and the Data Protection Act 1998.

See Jeremy Baker J’s conclusion – and notes of caution – at [73]-[75]:

“73. In these circumstances it seems to me that not only does the common law empower the police to disclose relevant information to relevant parties, where it is necessary for one of these police purposes, but that the DPA 1998, together with the relevant statutory and administrative codes, provide a sufficiently clear, accessible and consistent set of rules, so as to prevent arbitrary or abusive interference with an individual’s Article 8 rights; such that the disclosure will be in accordance with law.

74. However, it will clearly be necessary in any case, and in particular in relation to a decision to disclose information to a third party, for the decision-maker to examine with care the context in which his/her decision is being made.

75. In the present case, although the disclosure of the information by the police was to a LADO in circumstances involving the safeguarding of children, it also took place in the context of the claimant’s employment. The relevance of this being, as DC Pain was clearly aware from the contents of his e-mail to PS Bennett dated 10th June 2013, that the disclosure of the information had the potential to adversely affect the continuation of the claimant’s employment at the school….”

Was the disclosure proportionate?

While the disclosure decision was in accordance with the law, this did not remove the need for the police carefully to consider whether disclosure was necessary and proportionate, particularly in light of the serious consequences of disclosure for AB’s employment.

The Court held that the disclosure failed these tests. The crucial factor was that if such information about AB was well founded, then it would have been contained in his Enhanced Criminal Record Certificate – and if it was not, this would have prompted enquiries about the cogency of the information (why, if it was correct, was such serious information omitted from the ECRC?) which would reasonably have been pursued to bottom the matter out before the disclosure was made. These questions had not been asked in this case. See [80]-[81]:

“… In these circumstances, it was in my judgment, a necessary procedural step for DC Pain to ascertain from the DBS unit as to, whether, and if so, what information it had already disclosed on any enhanced criminal record certificate, as clearly if the unit had already disclosed the information which DC Pain believed had been provided to him by the college, then it would not have been necessary for him to have made any further disclosure of that information.

81. If either DC Pain or PS Bennett had taken this basic procedural step, then not only would it have been immediately obvious that this information had not been provided to the school, but more importantly, in the context of this case, it would also have been obvious that further enquiries were required to be made: firstly as to why no such disclosure had been made by the DBS unit; and secondly, once it had been ascertained that the only information which was in the possession of the DBS unit was the exchange of e-mails on the defendant’s management system, as to the accuracy of the information with which DC Pain believed he had been provided by the college.”

Judicial reviews of disclosure decisions concerning personal data: the DPA as an alternative remedy?

Finally, the Court dealt with a submission that judicial review should not be granted as this case focused on what was essentially a data protection complaint, which could have been taken up with the ICO under the DPA (as was suggested in Lord Sumption’s comments in Catt). That submission was dismissed: AB had not simply ignored or overlooked that prospect, but had rather opted to pursue an alternative course of complaint; the DPA did not really help with the police conduct complaint, and the case raised important issues.

Robin Hopkins @hopkinsrobin

Why Evans gets the spiders

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I told you FOI was sexy.

The Supreme Court’s judgment in R (Evans) v Attorney General [2015] UKSC 21 has received vast amounts of media coverage – more in a single day than everything else about FOI has received in ten years, I reckon. No need to explain what the case was about – the upshot is that Rob Evans gets Prince Charles’ ‘black spider’ letters. Here’s why.

In other words, this post summarises why the judgment went Evans’ way 5:2 on the FOIA veto and 6:1 on the EIR veto. I leave aside the trenchant dissenting judgments (Lord Wilson on both FOIA and the EIRs; Lord Hughes on FOIA only), which merit a post in their own right.

FOIA and the ministerial veto

Three of the five JSCs who found that the Attorney General’s veto under FOIA was unlawful took the following view (that of Lord Neuberger).

The constitutional context and the restrictive view of section 53

“A statutory provision which entitles a member of the executive… to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law”, i.e. (i) that a court’s decisions are binding and cannot be ignored or set aside by anyone, and (ii) that the executive’s actions are reviewable by the court on citizens’ behalf. “Section 53, as interpreted by the Attorney General’s argument in this case, flouts the first principle and stands the second principle on its head” (paragraphs 51-52).

Therefore, if Parliament intends to permit the executive to override a judicial decision merely because it disagrees with that decision, it must ‘squarely confront what it is doing’ and make its intentions ‘crystal clear’. Section 53 FOIA is a long way from authorising such an override on the grounds of disagreement (paragraphs 56-58).

The upshot is that a minister cannot use section 53 to override a judicial decision simply on the grounds that, having considered the issue based on the same facts and arguments as the court or tribunal, he reaches a different view. In their context, and in light of the serious constitutional implications, the words “on reasonable grounds” in section 53 FOIA must be construed more restrictively: mere disagreement with the court/tribunal will not do.

The threshold is higher: a section 53 certificate will be lawful if there has been a material change in circumstances, or if facts or matters come to light at some point which (a) indicate that the judicial decision being overturned was seriously flawed, but (b) cannot give rise to an appeal against that decision. Such cases will be exceptional, but they are a real possibility, in Lord Neuberger’s judgment. Section 53 therefore retains some utility (see paragraphs 68, 77 and 78). Lord Kerr and Lord Reed agreed with Lord Neuberger’s restrictive view of section 53.

A less restrictive view of section 53

Lord Mance (with whom Lady Hale agreed) also found the Attorney General’s veto in this case to have been unlawful. He agreed that mere disagreement with the decision being overturned will not do. Lord Mance’s interpretation of section 53, however, is markedly less restrictive than that of Lord Neuberger: the accountable person is entitled under section 53 to reach a different view on the balancing of competing interests, even in the absence of the sorts of new considerations Lord Neuberger envisages, provided he gives properly explained and solid reasons against the background and law established by the judicial decision (see paragraphs 130-131).

There is thus more scope for a lawful veto on Lord Mance’s view – but his was not the majority view. Lord Neuberger’s more restrictive view commanded wider support. This makes a big difference to the future use of section 53.

What about First-Tier and ICO decisions?

Here are some further important implications addressed by Lord Neuberger.

This veto was against a decision of the Upper Tribunal, which is a court of record. Do the same stringent restrictions apply to an attempt to veto a decision of the First-Tier Tribunal? Answer: yes.

What about the ICO’s decisions? Is the threshold for a lawful veto equally high, or is it lower? Answer: it is lower, as the ICO’s evaluation can seldom be as exhaustive as that of a Tribunal. Nonetheless, the option to appeal to the Tribunal will be a relevant consideration: to use the section 53 power to achieve what you could also achieve by the more constitutionally appropriate route of an appeal may be an abuse of that power.

Those distinctions are important. Some section 53 certificates have been issued against First-Tier Tribunal decisions – the NHS risk register veto, for example. Others have been against ICO decisions – the High Speed 2 veto, for example. The Iraq war cabinet minutes have been the subject of two section 53 certificates – one against a Tribunal decision, the other against an ICO decision.

The EIRs and the ministerial veto

By comparison, the answer under the EIRs was relatively straightforward: Article 6 of Directive 2003/4/EC requires that refusals to disclose environmental information can be challenged before court whose decisions will be final. The ministerial veto provision does not square with that requirement. Environmental information cannot be the subject of the ministerial veto. These were the arguments advanced by Mr Evans, and by Tim Pitt-Payne on the ICO’s behalf. They were accepted by six of the seven JSCs.

So, a triumphant day for Rob Evans and The Guardian – and indeed for FOIA, the EIRs, transparency and the rule of law.

The outlook for the future use of section 53 is challenging, though there is nuance aplenty, even aside from the dissenting judgments.

Robin Hopkins @hopkinsrobin

Google Spain, freedom of expression and security: the Dutch fight back

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The Dutch fighting back against the Spanish, battling to cast off the control exerted by Spanish decisions over Dutch ideologies and value judgments. I refer of course to the Eighty Years’ War (1568-1648), which in my view is a sadly neglected topic on Panopticon.

The reference could also be applied, without too much of a stretch, to data protection and privacy rights in 2015.

The relevant Spanish decision in this instance is of course Google Spain, which entrenched what has come to be called the ‘right to be forgotten’. The CJEU’s judgment on the facts of that case saw privacy rights trump most other interests. The judgment has come in for criticism from advocates of free expression.

The fight-back by free expression (and Google) has found the Netherlands to be its most fruitful battleground. In 2014, a convicted criminal’s legal battle to have certain links about his past ‘forgotten’ (in the Google Spain sense) failed.

This week, a similar challenge was also dismissed. This time, a KPMG partner sought the removal of links to stories about him allegedly having to live in a container on his own estate (because a disgruntled builder, unhappy over allegedly unpaid fees, changed the locks on the house!).

In a judgment concerned with preliminary relief, the Court of Amsterdam rejected his application, finding in Google’s favour. There is an excellent summary on the Dutch website Media Report here.

The Court found that the news stories to which the complaint about Google links related remained relevant in light of public debates on this story.

Importantly, the Court said of Google Spain that the right to be forgotten “is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The Court gave very substantial weight to the importance of freedom of expression, something which Google Spain’s critics say was seriously underestimated in the latter judgment. If this judgment is anything to go by, there is plenty of scope for lawyers and parties to help Courts properly to balance privacy and free expression.

Privacy rights wrestle not only against freedom of expression, but also against national security and policing concerns.

In The Hague, privacy has recently grabbed the upper hand over security concerns. The District Court of The Hague has this week found that Dutch law on the retention of telecommunications data should be down due to its incompatibility with privacy and data protection rights. This is the latest in a line of cases challenging such data retention laws, the most notable of which was the ECJ’s judgment in Digital Rights Ireland, on which see my post here. For a report on this week’s Dutch judgment, see this article by Maarten van Tartwijk in The Wall Street Journal.

As that article suggests, the case illustrates the ongoing tension between security and privacy. In the UK, security initially held sway as regards the retention of telecoms data: see the DRIP Regulations 2014 (and Panopticon passim). That side of the argument has gathered some momentum of late, in light of (for example) the Paris massacres and revelations about ‘Jihadi John’.

Just this week, however, the adequacy of UK law on security agencies has been called into question: see the Intelligence and Security Committee’s report entitled “Privacy and Security: a modern and transparent legal framework”. There are also ongoing challenges in the Investigatory Powers Tribunal – for example this one concerning Abdul Hakim Belhaj.

So, vital ideological debates continue to rage. Perhaps we really should be writing more about 17th century history on this blog.

Robin Hopkins @hopkinsrobin