Those of you (all of you, surely?) who are keenly following the nail-biting, cheek-clenching progress of the Trilogue’s negotiations over the General Data Protection Regulation will be overjoyed to read this 370 page official EU document, dated 20 November 2015, summarising the original Commission proposal, the Parliament’s position, the approach of the Council and the “tentative” agreement reached thus far in Trilogue (or, where there is no tentative agreement, the suggestions of the Council’s Presidency).

There is limited purpose in analysing in detail all of the changes and proposals at this stage – enough ink has already been wasted on overtaken drafts – but what the tentative agreements do indicate is that a final text is getting closer. Will it beat Christmas? Who knows. Somehow, it is unlikely that Santa is keen on having to lug a new Regulation around to try and squeeze it into your stockings, but progress is progress.

Christopher Knight

Did we all make submissions to the Independent Commission on Freedom of Information last week? It sounds as though many of you did. Lord Burns, Chair of the Commission, has announced that they received some 30,000 responses to their consultation. Not surprisingly, reading those and thinking about them is something the Commission does not now feel it can do before Christmas. Indeed, Lord Burns has announced he will call oral evidence from some respondents on 20 and 25 January 2016, and the Commission will write their report after that. Hopefully this is a sign that the Commission wants its work to be evidence-based. We wait to see who the lucky individuals are who have been invited to the oral evidence party.

The announcement is here.

Christopher Knight

As all celebrities know, to get the High Court to stop paparazzi pictures of you from being published, the first thing you have to do is show you had a reasonable expectation of privacy.  But what if you were snapped outside of the jurisdiction and whilst English law principles suggest that you did have such an expectation, the local law where the photographs were taken says you do not?

The answer given by the Court of Appeal in Weller v Associated Newspapers [2015] EWCA Civ 1176 is that the local law is not determinative and the weight to be given to it is a matter for the judge. Continue reading →

Is a request for information made in a tweet a valid request within the meaning of sections 1 and 8 FOIA? Not in Ghafoor v Information Commissioner (EA/2015/0140). The FTT held that section 8(1) requires the request for information to be made using the “real name” of the person making it, and that the provision of an address for correspondence must one which is “suitable for correspondence” between the requestor and the public authority about the request. Continue reading →

Since the CJEU gave judgment in Google Spain, there has been much discussion on the conference  circuit about whether the judgment rides rough shod over free speech rights. Certainly the lack of any procedural protections for the media within the right to be forgotten regime has been the subject of much heated debate. For those of you wishing to understand how Article 10 rights are likely to fare under the new General Data Protection Regulation, you would do well to start with this excellent article by Daphne Keller, Director for Intermediary Liability at Stanford Law’s Center for Internet and Society (and notably former Assistant General Counsel to Google).

As Daphne makes clear, the GDPR does not offer the media much by way of solace. Quite the contrary, what we see with the new Regulation is a continuing failure on the part of European legislators to accommodate free speech rights within the data protection regime in a structured and systematic manner. To a large extent this lack of protection for Article 10 rights is a product of the fact that historically data protection and the media have rarely crossed swords. Certainly within our own jurisdiction, it is only over the last 18 months or so that an awareness of the potentially very substantial areas of tension have begun to surface (see further not least the discussion of the Steinmetz case on this blog). However, the reality is that the European quest to place data privacy rights centre-stage, in the online world and beyond, now  poses serious challenges for the media. This is something which will hopefully start to register at least with those EU regulators who will in due course be charged with applying the GDPR.

Anya Proops