Author: Robin Hopkins

Privacy and data protection developments in 2013: Google, Facebook, Leveson and more

Posted on | by Robin Hopkins

Data protection law was designed to be a fundamental and concrete dimension of the individual’s right to privacy, the primary safeguard against misuse of personal information. Given those ambitions, it is surprisingly rarely litigated in the UK. It also attracts criticism as imposing burdensome bureaucracy but delivering little in the way of tangible protection in a digital age. Arguably then, data protection law has tended to punch below its weight. There are a number of reasons for this.

One is that Directive 95/46/EC, the bedrock of data protection laws in the European Union, is the product of a largely pre-digital world; its drafters can scarcely have imagined the ubiquity of Google, Twitter, Facebook and the like.

Another is that in the UK, the evolution of Article 8 ECHR and common law privacy and breach of confidence actions has tended to deprive the Data Protection Act 1998 of the oxygen of litigation – before the House of Lords in Campbell v MGN [2004] UKHL 22, for example, it was agreed that the DPA cause of action “added nothing” to the supermodel’s breach of confidence claim (para. 130).

A further factor is that the DPA 1998 has historically lacked teeth: a court’s discretion to enforce subject access rights under s. 7(9) is “general and untrammelled” (Durant v FSA [2003] EWCA Civ 1746 at para. 74); damages under s. 13 can only be awarded if financial loss has been incurred, and the Information Commissioner has, until recently, lacked robust enforcement powers.

This landscape is, however, undergoing very significant changes which (one hopes) will improve data protection’s fitness for purpose and amplify its contribution to privacy law. Here is an overview of some of the more notable developments so far in 2013.

The draft Data Protection Regulation

The most fundamental feature of this landscape is of course EU law. The draft DP Regulation, paired with a draft Directive tailored to the crime and security contexts, was leaked in December 2011 and published in January 2012 (see Panopticon’s analysis here). The draft Regulation, unlike its predecessor would be directly effective and therefore not dependent on implementation through member states’ domestic legislation. Its overarching aim is harmonisation of data protection standards across the EU: it includes a mechanism for achieving consistency, and a ‘one-stop shop’ regulatory approach (i.e. multinationals are answerable only to their ‘home’ data protection authority). It also tweaks the law on international data transfers, proposes that most organisations have designated data protection officers, offers individuals a ‘right to be forgotten’ and proposes eye-watering monetary penalties for data protection breaches.

Negotiations on that draft Regulation are in full swing: the European Parliament and the Council of the European Union’s DAPIX (Data Protection and Information Exchange) subgroup working on their recommendations separately before coming together to approve the final text (for more detail on the process, see the ICO’s outline here).

What changes, if any, should be made to the draft before it is finalised? That rather depends on who you ask.

In January 2013, the UK government set out its views on the draft Regulation. It did so in the form of its response to the recommendations of the Justice Select Committee following the latter’s examination of the draft Regulation. This is effectively the government’s current negotiation stance at the EU table. It opposes direct effect (i.e. it wants a directive rather than a regulation), thinks the ‘right to be forgotten’ as drafted is misconceived, favours charging for subject access requests and opposes the mandatory data protection officer requirement. The government considers that promoters of the draft have substantially overestimated the savings which the draft would deliver to business. The government also “believes that the supervisory authorities should have more discretion in the imposition of fines and that the proposed removal of discretion, combined with the higher levels of fines, could create an overly risk-averse environment for data controllers”. For more on its stance, see here.

The ICO has also has significant concerns. It opposes the two-stream approach (a mainstream Regulation and a crime-focused Directive) and seeks clarity on psedonymised data and non-obvious identifiers such as logs of IP addresses. It thinks the EU needs to be realistic about a ‘right to be forgotten’ and about its power over non-EU data controllers. It considers the current proposal to be “too prescriptive in terms of its administrative detail” and unduly burdensome for small and medium-sized enterprises in particular.

Interestingly, while the ICO favours consistency in terms of sanctions, it cautions against total harmonisation on all fronts: “Different Member States have different legal traditions. What is allowed by law is not spelled out in the UK in the way that it is in some other countries’ legal systems. The proposed legislation needs to reflect this, particularly in relation to the concept of ‘legitimate interests’.” For more on the ICO’s current thinking, see here.

Those then are the most influential UK perspectives. At an EU level, the European Parliament’s report on the draft Regulation is more wholeheartedly supportive. The European Parliament’s Industry Committee is somewhat more business-friendly in its focus, emphasising the importance of EU-wide consistency and a ‘one-stop shop’. Its message is clear: business needs certainty on data protection requirements. It also urges further exemptions from data protection duties for small and medium-sized enterprises “which are the backbone of Europe’s economy”. The Industry Committee’s views are available here.

Negotiations continue, the aim being to finalise the text by mid-2013. The European Parliament is likely to press for the final text to resemble the draft very closely. On the other hand, Ireland holds the Presidency of the Commission and of DAPIX – until mid-2013. Its perspective is probably closer to the UK ICO’s in tenor. There are good prospects of at least some of their views to be reflected in the final draft.

A number of the themes of the draft Regulation and the current negotiations are already surfacing in litigation, as explained below.

The Leveson Report

Data protection legislation in the UK will be affected not only by EU developments but by domestic ones too.

In recent weeks, debate about Leveson LJ’s report on the culture, practices and ethics of the press has tended to focus on the Defamation Bill which is currently scraping its way through Parliament. In particular, the debate concerns the merits of an apparently-Leveson inspired amendment tabled by Lord Puttnam which, some argue, threatens to derail this legislative overhaul of libel law in the UK (for one angle on this issue, see David Allen Green’s piece in the New Statesman here).

The Leveson Report also included a number of recommendations for changes to the DPA 1998 (see Panopticon’s posts here and here). These included overhauling and expanding the reach of the ICO and allowing courts to award damages even where no financial loss has been suffered (arguably a befitting change to a regime concerned at heart with personal privacy).

The thorniest of Leveson LJ’s DPA recommendations, however, concerned the wide-ranging ‘journalism exemption’ provided by s. 32. The ICO has begun work on a code of practice on the scope and meaning of this exemption. It has conducted a ‘framework consultation’, i.e. one seeking views on the questions to be addressed by the code, rather than the answers at this stage (further consultation will happen once a code has been drafted).

There is potential for this code to exert great influence: s. 32(3) says that in considering whether “the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with” any relevant code of practice – if it has been designated by order of the Secretary of State for this purpose. There is as yet no indication of an appetite for such designation, but it is hoped that, the wiser the code, the stronger the impetus to designate it.

The ICO’s framework consultation closes on 15 March. Watch out for (and respond to) the full consultation in due course.

Google – confidentiality, informed consent and data-sharing

Google (the closest current thing to a real ‘panopticon’?) has been the subject of a flurry of important recent developments.

First, certain EU data protection bodies intend to take “repressive action” against some of Google’s personal data practices. These bodies include the French authority, CNIL (the Commission nationale de l’informatique et des libertés) and the Article 29 Working Party (an advisory body made of data protection representatives from member states). In October 2012, following an investigation led by CNIL, the Working Party raised what it saw as deficiencies in Google’s confidentiality rules. It recommended, for example, that Google provide users with clearer information on issues such as how personal data is shared across Google’s services, and on Google’s retention periods for personal data. Google was asked to respond within four months. CNIL has reported in recent weeks that Google did not respond. The next step is for the Working Party “to set up a working group, led by the CNIL, in order to coordinate their repressive action which should take place before summer”. It is not clear what type of “repressive action” is envisaged.

Google and the ‘right to be forgotten’

Second, Google is currently involved in litigation against the Spanish data protection authority in the Court of Justice of the EU. The case arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts. The questions referred are available here.

The CJEU considered the case at the end of February, with judgment expected in mid-2013. The case is obviously of enormous relevance to Google’s business model (at least as regards the EU). Also, while much has been made about the ‘right to be forgotten’ codified in the draft EU Regulation (see above), this Google case is effectively about whether that right exists under the current law. For a Google perspective on these issues, see this blog post.

Another development closer to home touches on similar issues. The Court of Appeal gave judgment last month in Tamiz v Google [2013] EWCA Civ 68. Mr Tamiz complained to Google about comments on the ‘London Muslim’ blog (hosted by Google) which he contended were defamatory in nature. He asked Google to remove that blog. He also sought permission to serve proceedings on Google in California for defamation occurring between his request to Google and the taking down of the offending blog. Agreeing with Google, the Court of Appeal declined jurisdiction and permission to serve on Google in California.

Mr Tamiz’ case failed on the facts: given the small number of people who would have viewed this blog post in the relevant period, the extra-territorial proceedings ‘would not be worth the candle’.

The important points for present purposes, however, are these: the Court of Appeal held that there was an arguable case that Google was the ‘publisher’ of those statements for defamation purposes, and that it would not have an unassailable defence under s. 1 of the Defamation Act 1996. Google provided the blogging platform subject to conditions and had the power to block or remove content published in breach of those conditions. Following Mr Tamiz’s complaint, Google knew or ought to have known that it was causing or contributing to the ongoing publication of the offending material.

A ‘publisher’ for defamation purposes is not co-extensive with a ‘data controller’ for DPA purposes. Nonetheless, these issues in Tamiz resonate with those in the Google Spain case, and not just because of their ‘right to be forgotten’ subtext. Both cases raise this question: it is right to hold Google to account for its role in making false, inaccurate or misleading personal information available to members of the public? If it is, another question might also arise in due course: to what extent would Leveson-inspired amendments to the s. 32 DPA 1998 exemption (on which the ICO is consulting) affect service providers like Google?

Facebook, Google and jurisdiction

The Google Spain case also involves an important jurisdictional argument. Google’s headquarters are in California. It argued before the CJEU that Google Spain only sells advertising to the parent company, and that these complaints should therefore be considered under US data protection legislation. In other words, it argues, this is not a matter for EU data protection law at all. The Spanish authority argues that Google Spain’s ‘centre of gravity’ is in Spain: it links to Spanish websites, has a Spanish domain name and processes personal data about Spanish citizens and residents.

Victory for Google on this point would significantly curtail the data protection rights of EU citizens in this context.

Also on jurisdictional matters, Facebook has won an important recent victory in Germany. Schleswig-Holstein’s Data Protection Commissioner had ruled that Facebook’s ‘real names policy’ (i.e. its policy against accounts in psuedonymous names only) was unfair and unlawful. The German administrative court granted Facebook’s application for the suspension of that order on the grounds that the issue should instead be considered by the Irish Data Protection Authority, since Facebook is Dublin-based.

Here then, is an example of ‘one-stop shop’ arguments surfacing under current EU law. The ‘one-stop shop’ principle is clearly very important to businesses. In the Facebook case, it would no doubt say that its ‘home’ regulator understands its business much better and is therefore best equipped to assess the lawfulness of its practices. The future of EU law, however, is as much about consistency across member states as about offering a ‘one-stop shop’. The tension between ‘home ground advantage’ and EU-wide consistency is one of the more interesting practical issues in the current data protection debate.

Enforcement and penalties issued by the ICO

One of the most striking developments in UK data protection law in recent years has been the ICO’s use of its enforcement and (relatively new) monetary penalty powers.

On the enforcement front, the Tribunal has upheld the ICO’s groundbreaking notice issued against Southampton City Council for imposing audio recording requirements in taxis (see Panopticon’s post here).

The issuing of monetary penalties has continued apace, with the ICO having issued in the region of 30 notices in the last two years. In 2013, two have been issued.

One (£150,000) was on the Nursing and Midwifery Council, for losing three unencrypted DVDs relating to a nurse’s misconduct hearing, which included evidence from two vulnerable children. The second (£250,000) was on a private sector firm, Sony Computer Entertainment Europe Limited, following the hacking of Sony’s PlayStation Network Platform in April 2011, which the ICO considered “compromise[ed] the personal information of millions of customers, including their names, addresses, email addresses, dates of birth and account passwords. Customers’ payment card details were also at risk.”

In the only decision of its kind to date, the First-Tier Tribunal upheld a monetary penalty notice issued against Central London Community Care NHS Trust for faxing patient details to the wrong number (see Panopticon’s post here). The First-Tier Tribunal refused the Trust permission to appeal against that decision.

Other penalty notices are being appealed to the Tribunal – these include the Scottish Borders notice (which the Tribunal will consider next week) and the Tetrus Telecoms notice, the first to be issued under the Privacy and Electronic Communications Regulations 2003.

It is only a matter of time before the Upper Tribunal or a higher court considers a monetary penalty notice case. At present, however, there is no binding case law. To that extent, the monetary penalty system is a somewhat uncertain business.

The question of EU-wide consistency raises more fundamental uncertainty, especially when one considers the mandatory fining regime proposed in the draft EU Regulation, with fines of up to €1,000,000 or 2% of the data controller’s global annual turnover.

By way of contrast, 13 administrative sanctions for data protection breaches were issued in France in 2012, the highest fine being €20,000. Enforcement in Germany happens at a regional level, with Schleswig-Holstein regarded as on the stricter end; overall however, few fines are issued in Germany. How the ‘one-stop shop’ principle, the consistency mechanism and the proposed new fining regime will be reconciled is at present anyone’s guess.

From a UK perspective, however, the only point of certainty as regards monetary penalty notices is that there will be no slowing down in the ICO’s consideration of such cases in the short- to medium-term.

It is of course too early to say whether the developments outlined above will elevate data protection law from a supporting to a leading role in protecting privacy. It is clear, however, that – love them or hate them – data protection duties are increasingly relevant and demanding.

Robin Hopkins

Court of Appeal gives judgment on credit reference agencies and accuracy of personal data

Posted on | by Robin Hopkins

The fourth data protection principle requires that “personal data shall be accurate and, where necessary, kept up to date”. It does not, however “impose an absolute and unqualified obligation on [data controllers] to ensure the entire accuracy of the data they maintain. Questions of reasonableness arise in the application of the fourth principle, as paragraph 7 of Part II of Schedule I spells out.” This statement by Davis LJ (at para. 80) encapsulates the case of Smeaton v Equifax plc [2013] EWCA Civ 108, in which the Court of Appeal handed down judgment today.

Equifax is a well-known credit reference agency. Between 22 May 2002 and 17 July 2006 Equifax included in its credit file concerning the Respondent, Mr Smeaton, an entry to the effect that he was subject to a bankruptcy order. This was incorrect – that order had been rescinded in 2002.

He was subsequently declined a business loan, with serious detrimental consequences for that business. He brought a claim against Equifax for those business losses and “other losses and distress consequent upon his descent into a chaotic lifestyle”.

Initially, his cause of action was defamation. By the time of trial in 2011, it had become (a) a claim under s. 13 of the Data Protection Act 1998, and (b) a parallel common law tort claim.

The judge, HHJ Thornton QC (having substantially amended the first draft of his judgment following submissions at handing down), found that Equifax had breached the fourth data protection principle (as well as the first and the fifth, though he had heard no argument on these points), that it owed Mr Smeaton a parallel duty in tort and that he had suffered losses as a result of these breaches.

The Court of Appeal disagreed in strong terms, Tomlinson LJ saying this at para. 11 about the judge’s approach and conclusions – particularly on causation:

“In retrospect it is I think unfortunate that the judge attempted to resolve the causation issue in principle, divorced from the question what loss could actually be shown to have been caused by the asserted breaches of duty. I have little doubt that Mr Smeaton believes in all sincerity that a good number of the vicissitudes that have befallen him can be laid at the door of Equifax, but a close examination of the relationship between the losses alleged and the breaches of duty found by the judge would perhaps have introduced something in the way of a reality check. Had the judge looked at both issues together he might I think have had a better opportunity to assess the proposition in the round. As it is, the judge’s conclusion that the breaches of duty which he identified caused Mr Smeaton loss in that they prevented Ability Records from obtaining a loan in and after mid-2006 is in my view not just surprising but seriously aberrant. It is without any reliable foundation and completely unsupported, indeed contradicted, by the only evidence on which the judge could properly rely.”

Turning from the facts of the case and the question of causation to the approach to the fourth data protection principle in general, Tomlinson LJ said this at para. 44:

“The judge was also in my view wrong to regard the mere fact that the data had become inaccurate and remained accessible in its inaccurate form for a number of years as amounting to a “clearly established breach of the fourth principle” – judgment paragraph 106. Paragraph 7 of Part II provides that the fourth principle is not, in circumstances where the data accurately records [erroneous] information obtained by the data controller from the data subject or a third party, to be regarded as contravened if the data controller has, putting it broadly, taken reasonable steps to ensure the accuracy of the data. A conclusion as to contravention cannot in such a case be reached without first considering whether reasonable steps have been taken. As the facts of this case show, that may not always be a straightforward enquiry. Perhaps often it will and it may not therefore usually be difficult to establish a contravention. Once it is concluded that reasonable steps were not taken in this regard, a consumer may seek compensation under s.13. It will then be a defence for the data controller to show that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned. It may be that that enquiry is in substance no different from that required under paragraph 7 of Part II in the limited class of case to which that paragraph refers. However it should be noted that in cases not covered by paragraph 7 a contravention may be established without consideration of the reasonableness of the steps taken by the data controller. In such a case reasonableness would arise only if a defence were mounted under s.13(3).”

Tomlinson LJ then summarised the law and relevant legal guidance on credit reference agencies and bankruptcy proceedings. At para. 59, he concluded that:

“The judge’s approach begins with the observation, at paragraph 95 of the judgment, that erroneous or out of date data which remains on a consumer’s credit file can be particularly damaging. Of course this is true, and nothing I say in this judgment is intended to undermine the importance of the fourth data protection principle. But before deciding what is the ambit of the duty cast upon CRAs to ensure the accuracy of their data, it is necessary to put this important principle into context and to maintain a sense of proportion. In the context of lending, arrangements have been put in place to ensure that an applicant for credit should not suffer permanent damage as a result of inaccurate information appearing on his file. As recorded above these safeguards are set out in the Guide to Credit Scoring and are further explained in at least two other published documents…. The judge made no reference to these arrangements which are in my view relevant to the question how onerous a duty should be imposed upon a CRA to ensure that its data is accurate. I agree with Mr Handyside that in most cases of applications for credit failed on account of incorrect data the harm likely to be suffered is temporary inconvenience. It is possible that the judge overlooked this as a result of his flawed conclusion that it was inaccurate data, or more precisely the alleged breach of duty which gave rise thereto, which prevented Mr Smeaton / Ability Records from obtaining credit in and after July 2006.”

He continued at para 62:

“The judge ought in my view to have taken into account that these various publications demonstrate that both the methods by which CRAs collected and updated their data and the shortcomings in those methods were well-known to and understood by the Information Commissioner and the Insolvency Service.”

Tomlinson LJ also concluded (at paras. 67-68) that part of the judge’s conclusions on DPA breach “amounts to a conclusion that Equifax was in breach of the duty required of it under the DPA because it failed to attempt to persuade the Secretary of State and the Insolvency Service to initiate modifications to the legislative and regulatory framework and in particular failed to secure the reversal of the legislative choice made in 1986 no longer to require the automatic advertisement of annulments and rescissions. I do not consider that this is a realistic conclusion. Self-evidently it is not realistic to conclude that an exercise of this sort was either necessary or feasible in relation to a tiny number of cases where the consequences of inaccuracy could not normally be expected to be anything other than temporary inconvenience. A duty the content of which is to lobby for a change in the law must be very uncertain in its ambit and extent and in my view is implausible.”

Finally, not only had the judge erred in his approach to causation and the fourth data protection principle, he was also wrong to find that there was a parallel duty in common law: the House of Lords said in Customs and Excise Commissioners v Barclays Bank [2007] 181 that statutory duties cannot generate parallel common law ones, and on the raditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty, the answer here would also be ‘no’.

The judgment will be welcomed not only by credit reference agencies, but by all those data controllers whose particular circumstances mean that data inaccuracy is, best efforts notwithstanding, an occupational hazard.

For another blog post on this judgment, see Information Rights and Wrongs, where Jon Baines was quick off the mark.

Robin Hopkins

Vexatious and manifestly unreasonable requests: definitive guidance from the Upper Tribunal

Posted on | by Robin Hopkins

Public authorities often have cause to consider whether to treat requests for information as vexatious (section 14 of FOIA) or manifestly unreasonable (regulation 12(4)(b) of the EIR). Precise definitions of those terms are difficult to pin down. They are not supplied by legislation. There is no binding authority from appellate courts or tribunals on their meaning in the information rights context. The Information Commissioner’s guidance is long-standing, but First-Tier Tribunals vary in the extent to which they use that guidance.

In three distinct but related decisions published today, the Upper Tribunal (Judge Wikeley) has filled this gap, providing what is (for now) the definitive, binding guidance on what vexatiousness and manifest unreasonableness mean in this context, and how reliance on those provisions should be approached. The cases are Dransfield, Craven and Ainslie, with Dransfield serving as the lead case (for summaries of the first-instance decisions, use Panopticon’s search function).

The key principles of general application are summarised below, followed by observations on the three specific appeals.

What kind of a creature is section 14 of FOIA?

Section 14 is not stricly speaking an ‘exemption’. The purpose of the exemptions in Part 2 of FOIA “is to protect the information because of its inherent nature or quality. The purpose of section 14, on the other hand, must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA (to that extent I agree with the observations of the FTT in Lee v Information Commissioner and King’s College Cambridge EA/2012/0015, 0049 and 0085 at [50])… To that extent, section 14 of FOIA operates as a sort of legislative “get out of jail free card” for public authorities. Its effect is to relieve the public authority of dealing with the request in issue, except to the limited extent of issuing a refusal notice as required by section 17. In short, it allows the public authority to say in terms that “Enough is enough – the nature of this request is vexatious so that section 1 does not apply.”” (Dransfield, paras 10-11).

What does ‘vexatious’ mean in this context?

“’Vexatious’ is a protean word, i.e. one that takes its meaning and flavour from its context.” The dictionary definition is only a starting point: irritation or annoyance alone does not suffice – public scrutiny may be irritating or annoying to some, but it is the essence of FOIA.

“The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (Dransfield, para 43).

Guidance and illustrations

Judge Wikeley offered illustrative guidance under four headings (see the discussion at paras 28-39 of Dransfield). At para 28, he said this:

“Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term “vexatious”. Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms.”

Background and context can be highly relevant. As to burden, questions of volume, breadth, pattern and duration of requests may be relevant. Note, however, that volume alone might not be decisive. Furthermore, an individual request can be vexatious.

While FOIA is axiomatically motive blind, “the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request” (Dransfield, para 34).

Series of requests can sometimes start out innocuously, but fall into “vexatiousness by drift” (Dransfield, para 37).

As to serious purpose or value, “the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification” (Dransfield, para 38).

Notes of caution

Judge Wikeley confirmed that the term ‘vexatious’ here applies to the request, not the requester (Dransfield, para 19).

He also warned that the right to deem a single request vexatious “should not be seen as giving licence to public authorities to use section 14 as a means of forestalling genuine attempts to hold them to account” and that “a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident” (Dransfield, paras 36 and 38 respectively).

Where does this leave the Commissioner’s guidance?

The guidance remains valuable, but the ‘five factors’ are at best ‘pointers to potentially relevant considerations’; they are a means to an end (the end being the ‘ultimate test’ – see above) (Dransfield, paras 39-45).

Is the test for ‘manifest unreasonableness under the EIR any different?

A short answer: no (Craven, para 30).

Regulation 12(4)(b) is different to section 14 in three ways. “First, section 14 excuses the public authority from responding, but is not formally a FOIA exemption, whereas regulation 12(4)(d) is structurally an exception under the EIR. Second, the EIR provision is expressly subject to a public interest test. Third, under the EIR there is a presumption in favour of disclosure (see regulation 12(2))” (Craven, para 19).

However, the approach to this provision is the same as the approach to section 14 of FOIA (see above), both for analytical reasons and pragmatic ones (if the approach is the same, the question of which regime applies need not be analysed).

Unlike FOIA, the EIR do not have a separate exception for cost of compliance. Regulation 12(4)(b) is the provision relied upon when the cost of compliance is disproportionate. What about FOIA? Can section 14 be used even where section 12 might also have been an option (as has been argued at First-Tier level: see the IPCC and TieKey cases, for example)? The Upper Tribunal’s answer is yes, it can. Judge Wikeley did, however, say this (Craven, para 31):

“Notwithstanding the above, if the public authority’s principal reason (and especially where it is the sole reason) for wishing to reject the request concerns the projected costs of compliance, then as a matter of good practice serious consideration should be given to applying section 12 rather than section 14 in the FOIA context. Unnecessary resort to section 14 can be guaranteed to raise the temperature in FOIA disputes. In principle, however, there is no reason why excessive compliance costs alone should not be a reason for invoking section 14, just as may be done under regulation 12(4)(b), and in either case whether it is a “one-off” request or one made as part of a course of dealings.”

The outcomes in the individual appeals

In Dransfield (which concerned a series of requests about lightning protection measures), the appeals by the Commissioner and the public authority succeeded. The request fell within section 14. Judge Wikeley concluded inter alia that:

“I have no hesitation in accepting Mr Cross’s primary submission. The FTT adopted too restrictive an approach to the application of section 14 in paragraphs [31]-[38] of the reasons for the decision. In particular, the FTT relied on an unwarranted distinction between two types of case in which there has been a past course of dealings. The FTT’s view was, in effect, that where the link between the request in issue and the previous course of dealing was one of subject matter alone, then the public authority could not treat the request as vexatious on the basis of that course of dealing, whatever other considerations might suggest. On the FTT’s approach, there had to be some “underlying grievance”, not simply a “similarity of subject matter” in order for section 14 to bite.”

In Craven (which concerned a series of requests about high voltage electric cables), the requester’s appeal was allowed on the questions of adequacy of reasons and the failure of the FTT to set out the reasons for the dissenting minority view, but the Upper Tribunal re-made the decision and concluded that section 14 and regulation 12(4)(b) had been correctly applied by the public authority.

In Ainslie, the requester’s appeal was allowed. He was found to have been acting firmly in the public interest, and “the FTT failed to find sufficient facts, and in particular to resolve certain important disputed issues on the evidence before it, and in doing so failed to provide adequate reasons for its decision” (Ainslie, para 26).

Other important points

These decisions also contain a number of points of general application beyond the vexatiousness context. All those involved in Tribunal litigation should note the following points.

The Upper Tribunal has held that, where a FTT decision is a majority one rather than unanimous, the FTT will err if it fails to set out the reasons for the minority view (Craven, para 42).

Further, while not a new point, the Upper Tribunal has confirmed the importance of FTTs giving adequate reasons (whether unanimous or majority decisions) to allow parties to know why they won or lost.

Judge Wikeley has cautioned that strike-out applications in information rights matters should not be resorted to lightly, but should only follow careful consideration (Craven, para 94).

Where section 14 or regulation 12(4)(b) are relied upon, “every effort should be made to ensure that the parties can participate in an oral hearing. This allows the relevant issues to be properly explored in a way that is simply not always possible on the papers” (Craven, para 95).

Tribunals should also be “more alive to the importance of making their processes accessible to ordinary citizens acting without the benefit of professional representation… was the request vexatious or manifestly unreasonable (or not)? The appellate process in such a case needs to focus on that question, rather than indulge in legalistic point-scoring. Tribunals are for users, after all, not just (if at all) for lawyers” (Craven, para 96).

Finally, Judge Wikeley observed that the preponderance of section 14 cases at Tribunal level was no reflection on the general usage of FOIA. At para 83 of Dransfield, he made this observation:

“As the American legal theorist Professor Karl Llewellyn wisely observed, litigated cases are inherently “pathological”; they bear the same relation to the broader set of disputes “as does homicidal mania or sleeping sickness, to our normal life” (The Bramble Bush (1960), p.58).”

For those who spend much of their life litigating, these last points are food for thought.

Tom Cross appeared for the Commissioner in all three appeals. Rachel Kamm and James Cornwell appeared for the public authorities in Dransfield and Craven respectively.

Robin Hopkins

Central London NHS Trust: key points from the Tribunal’s first MPN case

Posted on | by Robin Hopkins

I reported earlier this week on the outcome of the first case of this type to reach the Tribunal. Here is my analysis of the key points.

Factual background

Central London Community Healthcare NHS Trust v IC (EA/2012/00111) concerned the first monetary penalty notice (MPN) to be appealed to the First-Tier Tribunal. The Trust’s appeal has been dismissed by the Tribunal (Professor Angel, Rosalind Tatam and Paul Taylor). The decision can be accessed here: Central London NHS Trust v IC EA20120111.

The background is that the Trust had, on some 45 occasions, faxed a list of palliative care in-patients to the wrong fax number (namely to that of a member of the public who notified the Trust and said he had destroyed the faxes – but he was never traced and destruction could not be confirmed). This was sensitive personal data: it included names as well as information about patients’ medical diagnoses, treatment and domestic situations.

The MPN

The IC found that the Trust had breached the seventh data protection principle, which requires that:

Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

The IC decided that the three preconditions for the exercise of his discretion to issue a MPN under section 55A of the Data Protection Act 1998 had been met here. These conditions are (i) there was a serious contravention of the DPA, (ii) this contravention was of a kind likely to cause substantial damage or substantial distress, and (iii) the contravention was either deliberate, or the data controller knew or ought to have known that there was a serious risk that a contravention would occur and would be of a kind likely to cause substantial damage or distress, but failed to take reasonable steps to prevent it happening.

The IC is empowered to impose MPNs of up to £500,000. In this case, the amount was £90,000.

The Tribunal’s jurisdiction

On the Trust’s appeal, one of the first issues for the Tribunal was the extent of its statutory powers under section 49 of the DPA (which mirrors section 58 of FOIA): the Tribunal agreed with the Trust that, as with appeals under FOIA, the Tribunal had jurisdiction to consider the matter de novo; it was not restricted to a review along public law lines. It also found that it could either allow the appeal, or substitute an alternative MPN (including one imposing a higher penalty than that imposed by the IC), or substitute an enforcement notice instead (paragraphs 36-39).

Alleged indication that no MPN would be issued

The only point of evidence in dispute was the Trust’s contention that the IC’s enforcement team had indicated during the investigation that no MPN would be issued. The Tribunal found that the Commissioner’s enforcement officer “did not give any serious indication or assurance that there would be no fine or MPN in this case which in any way excluded the IC from deciding to issue an MPN” (paragraph 46).

The IC’s decision-making process

The decision to impose a penalty is taken by a Deputy Commissioner, in consultation with an internal working party comprising various senior managers within the ICO and one of the ICO’s enforcement lawyers. Having decided that an MPN should be issued, the ICO determined the amount by reference to an internal, unpublished framework as follows:

(i) Serious = £40,000 to £100,000

(ii) Very serious = more than £100,000 but less than £250,000

(iii) Most serious = more than £250,000 up to the maximum of £500,000.

It decided that this case was in the “serious” category. Its methodology was then to take the midpoint of that band and consider any aggravating or mitigating circumstances.

As required by the DPA, the ICO then issued the Trust with a Notice of Intent to issue a MPN to the value of £90,000. The Trust accepted that a financial penalty was warranted, but disputed the amount, making submissions on mitigating factors. The ICO maintained its position and issued the MPN.

‘Assessments’ and the statutory bar under section 55(3A)

By section 55(3A) of the DPA, the IC may not use anything which came to his attention pursuant to his carrying out an ‘assessment’ under section 51(7) when deciding on whether an MPN can be imposed. The Trust argued that the IC’s investigation of its voluntarily-reported breach constituted an ‘assessment’.

The Tribunal considered the rival submissions on the legislative intent behind the bar imposed by section 55(3A) (though on this point it rejected the Trust’s invitation to take ministerial statements into account, on Pepper v Hart principles) and on the range of powers open to the IC. It preferred those of the IC: section 51(7) is directed at educating and advising data controllers, on the basis of a consensual engagement, with a view to avoiding future breaches of the DPA. The aim of the statutory bar provided for under section 55A(3A) is to prevent the IC from using information he obtains via the educational/advisory process provided for under section 51(7) to impose an MPN on a data controller. This case did not involve such an educational/advisory process. There was no assessment under section 51(7) (paragraphs 87-91).

The IC’s adherence to its own policy

The Trust did not contend that the IC failed to apply the statutory guidance on MPNs. It did, however, argue that it failed to consider or adhere to its own non-statutory policy on the reporting of breaches, which said that “the Commissioner will not normally take regulatory action unless a data controller declines to take any recommended action, he has other reasons to doubt future compliance or there is a need to provide reassurance to the public”.

Again, the Tribunal found for the IC: the statutory guidance was what really mattered, but in any event the IC had not departed from its own policies (paragraphs 102-103).

The IC’s exercising of its discretion

Where the conditions for the issuing of an MPN are met, the ICO still has a discretion as to whether or not to issue one. The Trust argued that the ICO had failed to exercise its discretion lawfully: there was no evidence of it taking into account relevant considerations.

The particular considerations relied upon by the Trust were (i) the ICO failed to take proper account of the overriding policy objective to encourage cooperative working between it and data controllers and failed to give sufficient credit for the Trust’s transparency and its co-operative stance, (ii) the effect of the ICO’s policy to impose high profile fines on data controllers who voluntarily report incidents and cooperate with its investigations is to discourage other controllers from being open and transparent, and (iii) the ICO’s approach to cases of this nature creates an unfair and unsustainable distinction between those data controllers who, when suspected of being in breach of the DPA, are required to submit to assessment notices or are requested to undergo consensual audits and those, like the Trust in this case, who voluntarily submit themselves to regulatory scrutiny. The Trust argued that the ICO had failed to think about these points.

The Tribunal rejected these criticisms as misconceived (paragraph 122). While the ICO’s process could have been more comprehensible, it could not be said to have overlooked relevant matters.

Consideration of mitigating factors

Next, the Trust contended that the ICO had failed properly to consider the mitigating factors on which it made submissions. Again, the Tribunal disagreed. The ICO had not erred in this way. In any event, the Tribunal did not seem to find the mitigating factors to be particularly forceful. It said:

“The fact that there was a voluntary notification cannot be given much weight when the Trust was under, in effect, an obligation to report (both to the ICO and to the NHS regionally). In any case it was reported over a month after the breach was discovered. Co-operation was the least that could be expected for such a serious breach. By the time the Trust informed the patients over three quarters were dead. There is still no absolute guarantee the sensitive information has been destroyed. The Trust’s mitigating features are therefore features to which we find the IC could not give much weight. In any case they are almost all post facto events and nothing about the wrongdoing” (paragraph 128).

The Trust’s criticisms of the IC’s decision on the amount of the MPN

The Trust said that the IC never explained its methodology for calculating the amount of the MPN – the three categories of seriousness, for example, were never mentioned, nor was the means of calculation. Once again, the Tribunal did not agree. It considered that the IC had made the principles behind its approach clear to the Trust prior to issuing the MPN.

Notable the Tribunal observed that “We find it interesting that the contravention is only categorised as “serious” and not “very serious” as it seems to us on the facts of this case the IC could have taken a more penal approach to the amount in question” (paragraph 138) and concluded that “We are satisfied that the ICO has reached a figure within a range of reasonable figures it could have considered” (paragraph 139). It also rejected the submission that the IC failed to take the mitigating factors into account when deciding on the amount of the MPN (paragraph 148).

Discount for early payment

The final issue considered by the Tribunal is of significant importance. MPNs provide for a discount (here: 20%) for early payment. If a data controller appeals an MPN and loses, can it still claim the discount? The Trust argued that, by refusing to keep the discount offer open pending the outcome of the appeal, the IC was penalising it for exercising its legal right to have its cased tested by a Tribunal. The Tribunal disagreed: “The purpose of the scheme would appear to us to encourage early payment and also to ensure there is an early resolution to the matter. There is no provision for a without prejudice payment” (paragraph 153). The IC did not err in refusing to keep the discount offer alive, and the Tribunal refused to restore that offer.

Data controllers who contravene the DPA in a serious or potentially serious way should take note of this last point, and indeed of the Tribunal’s first excursion into the new MPN appeal territory.

First-Tier Tribunal decisions are of course not binding on other First-Tier Tribunals. There will be more appeals against MPNs later this year. Panopticon will report on whether the principles from the Central London NHS Trust case are borne out by future decisions. For now, this decision is the best data controllers have to go on.

Tim Pitt-Payne QC appeared for the Trust. Anya Proops appeared for the IC.

Robin Hopkins

Tribunal dismisses first appeal against Monetary Penalty Notice

Posted on | by Robin Hopkins

One of the most notable features of the information rights landscape in 2012 was the issuing by the Information Commissioner of a number of Monetary Penalty Notices for breaches of (primarily, but not exclusively) the Data Protection Act 1998.

The First-Tier Tribunal has today given its decision in the first appeal against such a notice. Central London Community Healthcare NHS Trust v IC (EA/2012/00111) saw the Trust appeal against a £90,000 MPN for the Trust’s repeated faxing of sensitive patient data to the wrong fax number (see Panopticon’s earlier reports here and here).

A summary of the key points from this landmark decision will follow as soon as possible. For now, Panopticon can confirm that the Trust’s appeal has been dismissed.

Robin Hopkins

Supreme Court: Articles 3, 6 and 8 ECHR in child protection PII case

Posted on | by Robin Hopkins

There have been a number of important privacy judgments in recent weeks, particularly concerning Article 8 ECHR in cases with child protection elements. I have blogged on two Court of Appeal judgments. In the matter of X and Y (Children) [2012] EWCA Civ 1500 (19 November 2012) (Pill, Touslon and Monby LJJ; appeal against a decision of Peter Jackson J in the Family Division) concerned the tension between Articles 8 and 10. A second, more recent Court of Appeal judgment in Durham County Council v Dunn [2012] EWCA Civ 1654 (13 December 2012) (Maurice Kay, Munby and Tomlinson LJJ; appeal against a decision of HHJ Armitage QC) focused on balancing competing rights under Articles 8 (private and family life) and 6 (fair trial).

The Supreme Court has this week handed down an important judgment of the latter variety (Articles 8 and 6, as well as an Article 3 claim) in Re A (A Child) [2012] UKSC 60 (12 December 2012) (Lady Hale, with whom Lords Neuberger, Clarke, Wilson and Reed agreed;  appeal against a decision of McFarlane, Thorpe and Hallett LJJ).

Lady Hale began by summarising the case thus:

“We are asked in this case to reconcile the irreconcilable. On the one hand, there is the interest of a vulnerable young woman (X) who made an allegation in confidence to the authorities that while she was a child she had been seriously sexually abused by the father of a little girl (A) who is now aged 10. On the other hand we have the interests of that little girl, her mother (M) and her father (F), in having that allegation properly investigated and tested. These interests are not only private to the people involved. There are also public interests, on the one hand, in maintaining the confidentiality of this kind of communication, and, on the other, in the fair and open conduct of legal disputes. On both sides there is a public interest in protecting both children and vulnerable young adults from the risk of harm.”

In essence, X made the allegations of past sexual abuse by F to the local authority, but did not wish to take action against F. She asserted her rightsto privacy and confidentiality under Article 8  and argued that disclosure of her identity and the details of her allegations would amount to inhuman or degrading treatment contrary to Article 3.

The local authority asserted public interest immunity from disclosure. Lady Hale held that, analysed in terms of common law principles, disclosure should be ordrerd despite the important public interest in preserving the confidence of people who come forward with allegations of child abuse. At paragraph 30, she said this:

“Those allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which her father may present to her or can resume her normal relationship with him. That simply cannot be done without disclosing to the parents and to the Children’s Guardian the identity of X and the detail and history of the allegations which she has made.”

The same conclusion was reached by analysing the matter in Convention terms. X’s case was primarily based on Article 3. Lady Hale agreed with the Court of Appeal that disclosure would not violate those rights: “The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her” (paragraph 32).

Leaving aside Article 3, Lady Hale concluded that the rights of C, M and F under Articles 8 and 6 outweighed the Article 8 rights of X in the circumstances. A closed procedure seeking to minimise the impact on X’s privacy was not possible here. Furthermore, disclosure would not automatically expose X to the trauma of cross-examination: medical evidence and other means of giving evidence could, for example, be appropriate.

The case is an illuminating instance of extremely strong privacy rights being trumped by a combination of the family life rights of others, and in particular their right to a fair trial. In particular, it illustrates how, when serious allegations are made against individuals, the notion of privacy can cut both ways.

Robin Hopkins