Privacy, Patients and Payments – information sharing in the Court of Appeal


The recent decision of the Court of Appeal in W, X, Y and Z v Secretary of State for Health, Secretary of State for the Home Department and British Medical Association [2015] EWCA Civ 1034 offers rich pickings for information lawyers.  It deals with the status of information about medical treatment; it looks at the scope of common law protection for private and confidential information generally; and it illustrates how wider public law concepts can apply in the field of information sharing.

The context is the arrangements for charging for NHS services.  Persons who are not ordinarily resident can be charged for their use of the NHS, under the National Health Service (Charges to Overseas Visitors) Regulations 2011 (“the Charging Regulations”).  Under amendments made to the Immigration Rules in 2011, individuals with unpaid NHS debts of at least £1,000 may face immigration sanctions.  Also in 2011, the Secretary of State issued Guidance (“the Guidance”) on implementing the Charging Regulations.

The Guidance provides for information-sharing in support of the Charging Regulations.  NHS bodies are to transmit certain information (“the Information”) about non-resident patients to the Secretary of State for Health, who then passes it to the Home Office.  The Information includes the name, date of birth and gender of the patient, current address (if known), nationality, travel document number and expiry dates, the amount and date of the patient’s NHS debt, and the NHS body to which it is owed.

In judicial review proceedings, four non-UK residents challenged the legality of part of the Guidance.  In substance, they were challenging the information sharing arrangements outlined above.  They lost before Silber J, who held that the Information did not constitute confidential or private information.  The BMA were sufficiently concerned by this that they applied to intervene in the proceedings on appeal.  They were represented by Panopticon regular Anya Proops.

The Court of Appeal considered the issues under three broad headings: first, whether disclosure breached the claimants’ common law rights to privacy or confidentiality; secondly, a group of arguments about vires; and thirdly, the application of Article 8 of the European Convention on Human Rights.

On the first issue, the Court of Appeal considered privacy and confidentiality together. The Court distinguished two questions.  The first whether the Information was private or confidential in nature; and, if yes, the second was whether the claimants’ rights had been breached.

As to the first question, the Court held that Silber J had adopted the wrong approach by asking whether disclosure would be “highly offensive” (adopting the language of Lord Hope in Campbell v MGN [2004] UKHL 22).  That formulation was relevant to whether an interference with the right to privacy was justified; on the prior question of whether information was private, the touchstone was Lord Nicholls’ formulation in Campbell of whether the person in question had a reasonable expectation of privacy.

The Court accepted the BMA’s submission that the Information was inherently private because it told you something about the individuals’ health: it revealed that they had been unwell to the extent that they needed to seek medical care from an NHS body; and in some cases the nature of the NHS body would indicate the nature of the illness.  It did not matter that the Information was not about the details of the medical treatment in question.  The Court also referred to various guidance (e.g. from the GMC and the BMA) that all identifiable patient data held by a doctor or hospital should be treated as confidential.  Nevertheless, the Court held that the Information was generally not private in relation to the Secretary of State and the Home Office.  The reason was that the Guidance made clear that overseas visitors treated in NHS hospitals would be made aware that in certain circumstance the Information would be passed to the Secretary of State for onward transmission to the Home Office.  This awareness would negate any reasonable expectation of privacy.

The Court was at pains to emphasise that this part of its judgment should not be of concern to the BMA or other medical authorities, and was not intended to dismantle the general principle that health and medical information was inherently private and confidential.  Despite these assurances, this aspect of the judgment is surprising.  If information is inherently private, then one would not expect to be able to negate a reasonable expectation of privacy simply by telling the individual that you intend to disclose the information.  What you told the individual might very well be relevant to the second stage of the inquiry – i.e. whether interference with privacy was justified.  But, to take an extreme example, what if an NHS body told overseas visitors that full details of their treatment would be posted on a public website? Surely this would not be enough to defeat their reasonable expectation of privacy in relation to treatment information.  The point is especially strong given the nature of the services to which the Information related – a patient seeking NHS medical treatment will very often have no real choice whether to accept the service offered, even if they dislike what they are told about how their information will be handled.  It is not like deciding whether you should sign up for a social media site when you are unhappy with its privacy policy.

The Court went on to hold that, even if the claimants had a right to privacy and confidentiality in the Information, that right was not infringed by disclosure in accordance with the Guidance.  This issue required a balancing exercise, weighing the public benefit from disclosure against the harm done by interference with the right.  Silber J had been correct to conclude that the balance (if it needed to be drawn) came down in favour of disclosure.  He had relied on four factors:  the low level of intrusion into individual privacy; the fact that overseas patients were told about the disclosure; the legitimate aim of recovering NHS debts and ensuing defaulters were not able to stay in the UK; and the fact that the Information was securely transmitted to a limited group of civil servants.

On the second issue (as to vires) the Court discussed a range of related challenges.

The claimants relied on the principle of legality, whereby fundamental rights cannot be infringed without clear Parliamentary authority.  The Court held that the principle did not apply, since disclosure did not infringe the claimants’ privacy rights:  see above.  Next, the claimants argued that the NHS bodies did not have the power to pass on the information to the Secretary of State.  The Court held that they had both the power and the duty to pass it on:  the Guidance, read as a whole, amounted to a direction that they should do so, and the Secretary of State had the power to give such a direction under section 48 of the National Health Service Act 2006.  The use of that power was not impliedly excluded by the existence of a power under section 251 of the same Act to make regulations about the processing of patient information.  The Secretary of State was entitled to rely on the section 48 power, and was not obliged to use the regulation-making power under section 251.  The power under section 48 could only be used where the Secretary of State considered its use to be necessary for his functions under the 2006 Act. It was true that under the Charging Regulations it was the NHS bodies, not the Secretary of State, that made and recovered charges; but the Secretary of State could rely on his own general functions under section 1 of the 2006 Act, to continue the promotion of a comprehensive health service, as providing a proper basis for use of the section 48 power.

The Court then held that the Secretary of State had the power to pass the information on in turn to the Home Office.  He could rely for this purpose on his incidental powers under section 2 of the 2006 Act.  Alternatively, he could rely on his common law powers, even if the residual category of ministerial power not dependent on either statute or prerogative was to be confined to the exercise of powers for identifiably governmental purposes (as to which, see R (Shrewsbury and Atcham BC) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148).  Finally, the Guidance did not fetter the NHS bodies’ discretion:  the effect of the Guidance, in conjunction with section 48 of the 2006 Act, was that they had no choice but to pass on the information, and hence there was no discretion to be fettered.

On the third issue (Article 8) the Court concluded that any interference with the Article 8(1) right would be justified under Article 8(2).

It was argued for the claimants that any interference with the Article 8(1) right would not be “prescribed by law”.  The Court held that the combination of the Guidance and the operation of the Data Protection Act 1998 provided sufficient safeguards against arbitrary or abusive disclosure to satisfy this aspect of Article 8(2).

Searching questions in the CJEU: the East Sussex County Council case

When local authorities provide property search information, can they charge for doing so? On what legal basis? How should such charges be calculated?

A Panopticon post from February 2014 by Robin Hopkins explains the background. To summarise, at one time it was widely believed that the Local Authorities (England)(Charges for Property Searches) Regulations 2008 (“CPSR”) applied, allowing local authorities to charge by reference to staff costs, overheads, and the cost of maintaining information systems.   More recently, it has been recognised that such requests will largely fall within the Environmental Information Regulations 2004 (“EIR”). EIR regulation 8 allows reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or for examining the requested information in situ.

In East Sussex County Council v Information Commissioner and others the applicant requested answers to the questions in CON29, the Law Society’s standard property search form. The Council imposed a fixed charge (based on the CPSR approach) that took account of disbursements, staff time, overheads, office costs, and information system costs. The First Tier Tribunal had to determine whether the charge was permissible under EIR regulation 8. It referred a number of questions to the CJEU for a preliminary ruling on the construction of Directive 2003/4 (“the Directive), to which the EIR give effect.

The case has now been heard in the CJEU, and Advocate General Sharpston issued her opinion on 16th April 2015.

The case turns on the construction of Articles 5 and 6 of the Directive. Article 5(1) requires that access to any public registers or lists of environmental information, and examination in situ of such information, shall be free of charge. Article 5(2) then allows public authorities to charge for supplying environmental information on request, provided that the charge does not exceed a reasonable amount. By Article 6, Member States must provide for administrative and judicial review of public authorities’ decisions relating to access to environmental information.

The first question addressed is what is meant by “supplying” environmental information in Article 5(2). Advocate General Sharpston states that this means providing access on request, by giving such information to an applicant in the format that he specifies, in circumstances other than those set out in Article 5(1).

What constitutes a “reasonable amount” within Article 5(2)? Advocate General Sharpston refers to this term as having an autonomous EU law meaning. She sets out, in some detail, what this means in practice. She identifies four requirements. First, a reasonable charge is one that is set on the basis of objective factors that are known and capable of review by a third party. Secondly, the charge must be calculated regardless of the requester’s identity or purpose. Thirdly, the charge must be set at a level that does not dissuade people from seeking access or restrict their right of access. Fourthly, the charge must be appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information), and must be directly correlated to the act of supplying the information.

What can such a charge include? It must be based on the costs actually incurred in connection with the act of supplying information in response to a specific request. Hence the charge cannot include database costs, or overheads such as heating, lighting, or internal services. However it can include the costs of staff time spent on searching for and producing the information requested, and the cost of producing it in the form requested.

It is permissible for national law to provide that a public authority must satisfy itself that a charge levied meets the reasonableness standard. However, Article 6(1) and (2) of Directive 2003/4 requires a Member State to ensure that there can be both administrative and judicial review of whether the public authority’s decision conforms with the autonomous EU law meaning of what is reasonable.

While the issue of search costs for property search information may not set the pulse racing, it is of real importance both for companies carrying on business in this area and for cash-strapped local authorities keen to recover whatever costs they can. It remains to be seen, of course, whether the CJEU will adopt the Advocate General’s opinion.

11KBW’s Anya Proops acted for the Information Commissioner in the proceedings before the CJEU.

The Not Entirely Secret Diary of Mr Lansley

 What considerations are relevant when deciding whether a Ministerial diary should be disclosed under FOIA?  The decision of the First-tier Tribunal in Department of Health v Information Commissioner EA/2013/0087 is, perhaps surprisingly, the first Tribunal decision to address this issue.  The judgment engages with a number of difficult issues:  the Tribunal’s approach to Government evidence, the value of cross-examination in Tribunal hearings, aggregation of public interests under FOIA, and Parliamentary privilege.  Hence it is of general importance, going beyond the intrinsic interest of its specific subject matter.

The request was for the Ministerial diary of the Rt Hon Andrew Lansley MP for the period 12th May 2010 to 30th April 2011, during which he was Secretary of State for Health.  During this period, the Minister’s primary focus was the Department’s NHS reform programme.  The requester was a journalist dealing with health issues.  After the Department refused the request, and maintained its refusal on internal review, the requester complained to the Information Commissioner.  In the course of the Commissioner’s investigation the Department disclosed a heavily redacted version of the diary.

The Commissioner ordered the Department to disclose the whole diary, with very limited redactions.  On the Department’s appeal, the First-tier Tribunal upheld the Commissioner’s decision, with minor modifications reflecting points that were conceded by the Commissioner before the Tribunal.

The material before the Tribunal included witness statements from Sir Alex Allan and Paul Macnaught in support of the Department’s case.  Sir Alex is a distinguished former civil servant, currently the Prime Minister’s Independent Adviser on Ministerial Interests.  Mr. Macnaught is the Director of Assurance at the Department.  The Commissioner had initially accepted that the hearing should take place without oral evidence, but on the Tribunal’s request Sir Alex and Mr. Macnaught attended the hearing and were questioned.

At the start of its decision, the Tribunal considered whether the entire contents of the diary were “held” by the Department, within the meaning of FOIA section 3(2).  In this context it focused on the entries that related to non-Ministerial activities such as constituency work.  The Department accepted that these entries were held by the Department when they were first made, but contended that by the time of the request the Department was merely providing electronic storage for this information.  The Tribunal rejected this.  There was no evidence of the Minister asking the Department to store this information; and even after the engagements had been fulfilled the information remained of potential value to the Department, e.g. if there was a need to check where the Minister had been at a particular time.  The whole of the diary, therefore, was held by the Department and potentially disclosable under FOIA.

As to the personal data exemption (section 40(2)), there was little controversy except in relation to meetings between the Minister and constituency MPs acting as elected representatives.  The Commissioner considered that the identity of the MPs should be disclosed; the Department did not concede this; and the Tribunal agreed with the Commissioner.

In relation to the national security exemption (ss 23(5) and 24(2)) there was no dispute between the Commissioner and the Department as to the information that ought to be withheld.  The Tribunal considered that it would be sterile to address the areas of disagreement as to the precise application of these two exemptions.

The main area of controversy was the application of the exemptions in s 35(1)(a) (formulation or development of Government policy), s 35(1)(b)  (Ministerial communciations), and s 35(1)(d) (operation of a Ministerial private office).  By the time the Tribunal came to make its decision, the Commissioner accepted that these exemptions were applicable where claimed by the Department: so the issue was whether the public interest in maintaining the exemptions outweighed the public interest in disclosure.

At the start of its consideration of the public interest test, the Tribunal addressed a number of general issues.

It began by considering the value of oral evidence.  The Tribunal referred to what was said about cross-examination by the Upper Tribunal in APPGER v IC and FCO [2013] UKUT 560 (AAC).  It interpreted the Upper Tribunal’s remarks as highlighting the need to consider whether cross-examination was necessary in the particular case, but not as ruling it out.  The Tribunal considered that oral evidence and cross-examination could often be of great assistance; in particular it affirmed the value of testing the public authority’s evidence in this way where cases involved a difficult judgment on the balance of public interest.  Cross-examination could be especially important where there was closed evidence.

Next, the Tribunal considered the extent to which deference should be given to Government evidence, and the relevance (if any) of the case law about public interest immunity (PII) when applying the public interest test under FOIA.  The Tribunal rejected the contention that FOIA cases and PII cases should in all respects be approached in the same way.  The remarks in the APPGER case about the relevance of PII were intended to emphasise the need, in both PII and FOIA cases, properly to identify the factors for and against disclosure; they were not meant to assimilate FOIA and PII in all respects.  The Tribunal accepted that proper weight should be given to the expertise of Government witnesses; but, if “deference” meant that their evidence should be accepted unless it lacked any rational basis or was given in bad faith, then the Tribunal rejected the suggestion that it should show deference to that evidence.  Broadly speaking, the Tribunal accepted that the Government’s expertise would carry greater weight in relation to state security or international relations than in s 35 cases, but this was not a hard and fast distinction.

When it came to striking the public interest balance, the Tribunal emphasised the need to identify the particular benefits and detriments, and their likelihood, on each side of the equation.  At the same time, the Tribunal recognised the assumption underlying FOIA, that there is a general public interest in the transparency of public authorities; in many cases it would only be possible for the benefits of disclosure to be identified at a high and generic level.  It indicated that the inclusion (e.g. in skeleton arguments) of a table summarising the various factors and their significance could often be of assistance.

The discussion of aggregation is particularly interesting.  Since the decision of the European Court in the Ofcom case, Tribunals in EIR cases have been required to look at exemptions on an aggregated basis, considering the overall public interest balance for and against disclosure; there is as yet no definitive judgment as to whether the same approach applies under FOIA.  Here, the Tribunal took a middle position between the submissions made for the Department and the Commissioner.  It accepted (contrary to the Commissioner’s position) that aggregation applied under FOIA.  But it took a more limited view of aggregation than did the Department:  properly understood, Ofcom supported aggregation in EIR cases only where there was an overlap between the interests served by the different exemptions, and the same approach should be applied under FOIA.

In relation to Parliamentary materials, the Department had relied upon parts of chapter 6 of the House of Commons Justice Committee report:  Post-legislative scrutiny of the Freedom of Information Act 2000 (3rd July 2012).  The Tribunal considered whether it was proper to take this material into account, having regard to Parliamentary privilege.  It discussed the decision of Stanley Burnton J in the OGC case, and the less restrictive approach to the use of Parliamentary materials adopted in the R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin):  the Tribunal decided to follow the Age (UK) case.  The Tribunal took into account the material relied upon by the Department, and found it helpful by way of background, but stated that it would be inappropriate to rely on any particular view expressed to or by the Parliamentary Committee.

The Tribunal then carried out the public interest balance in relation to the disputed information (i.e. the relevant Ministerial diary).  In respect of both the interests favouring disclosure and the interests in maintaining the section 35 exemptions, the Tribunal summarised its conclusions in a table, setting out the factors taken into account and the impact of disclosure on those factors.  For instance, in terms of the interests served by disclosure, it considered that there would be a “positive” impact in relation to “accountability:  whether the public was getting good value from the Minister and whether he was properly carrying out his functions”.  In terms of the adverse impacts of disclosure, it considered that a “modest additional burden” was likely by reason that “potentially misleading information would need to be explained”.  A number of factors for and against disclosure were listed and assessed in a similar way.

In order to reach the conclusions set out in tabulated form, the Tribunal conducted a detailed assessment of the evidence given.  It was critical of some of the evidence given by the Department’s witnesses, and was careful to explain why despite their expertise it was departing from that evidence in some regards: this is the practical application of the Tribunal’s discussion of deference, earlier in the decision.  For instance, in relation to the public interest in favour of disclosure, the Department’s evidence was that this interest was substantially met by the publication of quarterly information releases about ministerial activity.  The Tribunal was critical of this part of the evidence for giving insufficient weight to the fact that the information releases (unlike the diary) did not cover meetings by video conference or telephone.  In relation to the public interests for maintaining the exemption, the Tribunal considered that some of the Department’s evidence was unrealistic:  for instance, it did not accept that the prospect of disclosure of their diaries would encourage Ministers to arrange unnecessary meetings as window dressing in order to deflect potential public criticism.  The overall effect of these criticisms, according to the Tribunal, was to reduce their confidence in the objectivity of the evidence and the accuracy and soundness of the witnesses’ evaluative judgments.

Overall, the Tribunal’s assessment was that the factors in favour of disclosure outweighed those in favour of maintaining the exemptions, but not by a particularly large margin.  With limited exceptions – reflecting concessions made by the Commissioner at the hearing – it upheld the Commissioner’s decision in favour of disclosure.

Apart from the interest of its specific subject-matter, the case is of general importance in relation to the Tribunal’s approach to the public interest test, especially under section 35.  It both exemplifies and defends the Tribunal’s established approach:  i.e. the Tribunal will consider Government evidence carefully; witnesses will be cross-examined on their assessment of the factors for and against disclosure; the Tribunal will take account of witness expertise, but will ultimately form its own view; and the Tribunal will reject Government evidence where it thinks it appropriate to do so, notwithstanding the absence of witness evidence taking a contrary view.  The central question on any appeal will be whether this approach requires modification.

Timothy Pitt-Payne QC

Kennedy reaches the Supreme Court

The most eagerly awaited Information Law hearing of 2013 starts today.  The Supreme Court will be considering the appeal against the decision of the Court of Appeal in Kennedy v Charity Commission and others [2012] EWCA Civ 317.  The case raises the issue of whether Article 10 of the European Convention on Human Rights confers a right of access to information held by public authorities.  It also requires the Court to construe section 32(2) of the Freedom of Information Act 2000 (an absolute exemption applicable to information held for the purpose of an inquiry).  The Supreme Court is being asked to reconsider aspects of its judgment in BBC v Sugar (No 2) and as a result the appeal has been listed before a panel of seven Justices.

For details of the extensive 11KBW involvement in the hearing, see here.


Timothy Pitt-Payne QC

Data protection reform in the EU

In 1913, Parliament was debating the Welsh Church Disestablishment Bill.  F. E. Smith described it as “a Bill which has shocked the conscience of every Christian community in Europe”.  This prompted a stinging rebuke from G.K. Chesterton:  was it remotely plausible that, say Breton fishermen, or Russian peasants, had the slightest interest in any of this?

“ Do they, fasting, trembling bleeding

Wait the news from this our city?

Groaning, ‘That’s the Second Reading!’

Hissing ‘There is still Committee!’

If the voice of Cecil falters,

If McKenna’s point has pith,

Do they tremble for their altars?

Do they, Smith?”

A hundred years later, the European Parliament is debating data protection reform.  To suggest that every citizen of the Union is hanging on the words of Jan-Philipp Albrecht or Viviane Reding would invite Chestertonian derision.  But there must be a number of businesses that are trembling (if not perhaps fasting or bleeding, as yet) at talk of fines of up to 100 million Euros (or 5% of global turnover, whichever is the greater) for breach of the new requirements.  And the level of interest among ordinary citizens, at any rate in some countries in the EU, should not be underestimated.

The above reflections are prompted by the news that the LIBE Committee of the European Parliament has adopted an agreed position on the proposed new Regulations and Directive.  This gives a mandate for the rapporteurs – MEPs Jan-Philipp Albrecht and Dimitrious Droutsas – to negotiate with the EU Council on Parliament’s behalf.

The full text of the proposed version of the legislation approved by the LIBE Committee has not been made public.  However, this press release from the Commission indicates that there are some important differences between the Commission’s original proposal in January 2012 and the text being put forward by the LIBE Committee.  Notably, the Committee is proposing maximum sanctions of 100 million euros or up to 5% of annual worldwide turnover, as compared with 1 million euros or up to 2% of annual worldwide turnover.

The Committee also wishes to strengthen the territorial scope of the reforms.  The Commission’s original proposal was that in specified circumstances the Regulation should apply to the processing of personal data of subject residing in the Union, by a controller not established in the Union.  The Committee is proposing that the Regulation should apply to the processing by a controller or processor not established in the Union.

The Commission’s proposal was that this extra-territorial reach of the Regulation should apply where the processing activities were related to the offering of goods and services to data subjects in the Union, or to the monitoring of their behaviour.  The Committee is proposing that the Regulation should apply to the offering of goods or services to data subjects in the Union irrespective of whether a payment of the data subject is required.  So, on the Committee’s text, a social networking site established outside the EU would be caught if it offered membership to individuals in the Union, even if membership was free.   The Committee also proposes that the Regulation should apply to the monitoring of such subjects (not just to the monitoring of their behaviour).

The Committee’s text also would prohibit disclosure outside the EU of personal data processed in the EU, where such disclosure was ordered by a non-EU court or tribunal, unless the transfer was authorised in advance by the relevant EU national data protection authority.  So, it would appear, if a US court ordered disclosure of personal data about UK citizens, then a US company that complied with that order without the prior authorisation of the ICO would be in breach of the Regulation and could be fined.

Media and online comment (see e.g. here and here) has suggested that the European Parliament’s current approach – strengthening the protection for data subjects, in particular in relation to international transfers – is partly a reaction to the revelations by Edward Snowden about the disclosure of personal information to the NSA.

The next step will be for the Council to decide on its position.  There will be a Council discussion between heads of state and government on 24th – 25th October, relating to the digital single market, followed by a meeting of Justice Ministers on data protection reform on 4th – 5th December.  There will then be a “trilogue” between Parliament, the Council, and the Commission.  The President of the European Commission has called for a final text to be agreed before the European Parliamentary elections in May 2014 – though it seems likely that there will be a further 2 years or so before the new legislation comes into effect.

Timothy Pitt-Payne


Penalties, PECR and PPI

 Niebel v Information Commissioner is the first Tribunal decision about penalties under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  Mr.Niebel successfully appealed against a penalty of £300,000.

The First-tier Tribunal stated that the material before them showed that Mr. Niebel and his company, Tetrus, had sent hundreds of thousands of unsolicited text messages seeking out potential claims for the mis-selling of PPI or for accidents.  There was no dispute that he had breached the requirements under PECR regulation 22, relating to the sending of text messages for direct marketing.  Until 26th May 2011 there was no power to impose penalties for such a breach, but with effect from that date the monetary penalty provisions in the Data Protection Act 1998 (sections 55A-E of the Act) had been extended to cover breaches of PECR.

In the present case, the monetary penalty notice was imposed on 26th November 2011, requiring payment of £300,000.  The Tribunal emphasised the importance of a clear statement in the notice identifying the contravention for which a penalty was imposed.  At the very least this should indicate the regulation contravened, the content of the contravention, and its scale, including roughly how many individual acts there were and how many people were affected.

In this case the Tribunal considered that the notice had failed clearly to identify the contravention.  The notice seemed to be confined to 411 cases, involving a total of 732 texts, in which the recipient had complained to the ICO.  However, some parts of the penalty notice referred to contravention on a much wider scale.

A further difficulty was that the ICO subsequently discovered that most of the 732 texts referred to had been sent before 26th May 2011 (the date when the power to issue penalties came into effect); and the ICO accepted that these earlier texts could not properly be taken into account.  The ICO therefore relied at the Tribunal hearing on 286 texts, not 732:  the number of affected individuals was not stated, but the Tribunal indicated (if the ratio of texts to complaints was consistent) that this would be about 160.

The appeal was brought on one short point.  It was argued that the contravention was not of a kind likely to cause substantial damage or substantial distress, since it was now described as relating to just 286 texts; therefore one of the statutory preconditions for a monetary penalty was not satisfied.

The Tribunal proceeded on the basis that the likelihood of damage and distress should be assessed by reference to the 286 texts now relied upon by the ICO as constituting the contravention, rather than by reference to other evidence showing very large numbers of unsolicited text messages.  On this basis, the requirement that the contravention was not likely to cause substantial damage or substantial distress was not satisfied.  As far as damage was concerned, recipients might incur charges for replying “stop”, and there might be a small charge if texts were received abroad, but none of this was likely to cause substantial damage.  As to distress, the Tribunal considered that the effect of the contravention was likely to be widespread irritation rather than substantial distress.  The Tribunal allowed the appeal and cancelled the penalty notice.

The decision leaves open one very important question.  Would the sending of hundreds of thousands of unwanted marketing messages be likely to give rise to substantial damage or substantial distress?  Could one say that, in aggregate, the small costs imposed on a very large number of individuals amounted to substantial damage? Or that the irritation caused to such a large number constituted substantial distress? This issue will no doubt be of great importance in future appeals about monetary penalties under PECR.

Two of my colleagues appeared in this case:  James Cornwell for the ICO, and Robin Hopkins for the Appellant.  Neither of them, of course, bears any responsibility for the content of this blog post.

Timothy Pitt-Payne