Category: Information law

Sex in the IPT

Posted on | by Christopher Knight

As with all the best headlines, this one is slightly misleading. Readers can scarcely fail to have noticed the coverage surrounding the major ongoing case regarding a former undercover (under-the-covers?) police officer, Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, AJA and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources. However, the common law claims were stayed to await the IPT ruling.

The Court of Appeal has now reviewed the decision of Tugendhat J: [2013] EWCA Civ 1342 (Lord Dyson MR, Maurice Kay and Sharp LJJ). In essence, the Court of Appeal felt the High Court judgment was half right.

The Court rejected the submission that words “personal or other relationship” in s.26(8)(a) of the Regulation of Investigatory Powers Act 2000 formed part of the definition of the type of conduct which could be authorised under s.27 (lawful surveillance) and which, if it was carried out in challengeable circumstances, might be the subject of human rights proceedings before the IPT under s.65. In the plain and ordinary meaning of the words, it included intimate sexual relationships. While some readers of this blog may have had intimate sexual relationships which felt rather impersonal, in general terms it is difficult to see how the Court of Appeal could have concluded otherwise. Parliament clearly intended that human rights proceedings about the establishing of relationships by undercover police officers should only be determined by the IPT: R (A) v Director of Establishments of Security Service [2009] UKSC 12; [2010] 2 AC 1. The IPT had jurisdiction to determine the human rights claims made and was the appropriate forum for their determination.

However, the Court overturned the decision to stay the common law claims (for the torts of deceit, misfeasance in public office, assault and negligence). The legislation gave no priority to the IPT proceedings. It was difficult to see how a decision of the IPT would assist in resolving procedural issues which arose in the court proceedings. The IPT would only issue a summary of its determination and it was difficult to see how that would assist the court. The judge failed to apply the correct test and ask himself whether the respondents had shown that there was a real risk of prejudice to them if the court proceedings took precedence over the IPT proceedings. The respondents could not point to a real risk of injustice if the High Court proceedings continued and certainly not one which outweighed X’s and F’s rights to have their claims heard in open court. The stay was lifted.

The individuals who are understandably aggrieved and distressed by the actions of the undercover officers have a won a partial victory. Given the difficulties the police will have in defending the tort claims in open court without revealing material they do not wish to, the lifting of the stay may well end up being the much more important limb of the decision.

For those interested in the background to this case, see this review from the LRB of a recent book on the activities of officers like Mark Kennedy, which explains in some detail the effect undercover relationships have had on both ‘targets’ and officers.

Christopher Knight

Private Detectives, Estate Agents and Data Protection in the CJEU

Posted on | by Christopher Knight

Belgium has rules on who may act as an estate agent. Mr Englebert (disappointingly, not Humperdink) was such an estate agent. The professional regulatory body of estate agents (the IPI) applied to the local court to have Mr Englebert struck off the list of estate agents, based in large part on information obtained about him from private detectives. The allegations are not recorded in the judgment of the Court of Justice, but one suspects that the underlying facts are not causing Raymond Chandler to turn in his grave in disappointment at the plot he failed to think up.

The domestic court considered the suggestion that requiring the data subject to be informed of the detective’s investigation in advance or, where the data is collected from third parties, at the time of undertaking the recording of the data at issue, would make it impossible for a private detective to carry on his activities under Articles 10 and 11 of the Data Protection Directive (Directive 95/46/EC). The Tribunal de commerce de Charleroi was uncertain whether, by not extending to private detectives the exceptions to the obligation to inform which apply to other professional categories or bodies working in the public interest (under Article 13 of the Directive), the domestic law might give rise to unequal treatment contrary to the Constitution. The Constitutional Court referred to the CJEU the question whether Directive 95/46 is “to be interpreted as meaning that it leaves the Member States free to choose whether or not to provide for an exception to the immediate obligation to inform set out in Article 11(1) if this is necessary in order to protect the rights and freedoms of others”.

In Case C‑473/12 Institut professionnel des agents immobiliers v Englebert (judgement of 7 November 2013) the Third Chamber of the CJEU ruled that Article 13(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that Member States have no obligation, but have the option, to transpose into their national law one or more of the exceptions which it lays down to the obligation to inform data subjects of the processing of their personal data.

The activity of a private detective acting for a professional body in order to investigate breaches of ethics of a regulated profession, in this case that of estate agent, is covered by the exception in Article 13(1)(d) of Directive 95/46 (which provides an exemption in terms for “the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions”).

It is for the Member States to decide whether they consider it necessary to provide, in their legislation for the exception laid down in Article 13(1)(d) of Directive 95/46 in favour of professional bodies such as IPI, acting directly or with the help of private detectives. It is open to them to take the view that those professional bodies and the private detectives acting for them have sufficient means, notwithstanding the application of Articles 10 and 11 of that directive, of detecting the breaches of ethics at issue, so that it is not necessary for that exception to be implemented in order for those bodies to be able to carry out their duty of ensuring compliance with the rules (see at [48]).

The CJEU also confirmed that the rules on access to a regulated profession form part of the rules of professional ethics. It follows that investigations concerning the acts of persons who breach those rules by passing themselves off as estate agents are covered by the exception in Article 13(1)(d) of Directive 95/46 (see at [50]).

The CJEU did not itself answer whether it amounted to unequal treatment for Belgian law not to have applied the Article 13 exemptions to private detectives. The effect of the judgment was that Belgian was entitled – although not obliged – to apply the exemption from the duty to inform under Article 11 to private detectives if it chose to do so.

Christopher Knight

Kennedy in the Supreme Court: News Flash

Posted on | by Christopher Knight

At the close of the first day’s oral argument in Kennedy v The Charity Commission, the Supreme Court indicated that it would be dismissing the first ground of appeal, i.e. on the domestic construction of section 32(2) of FOIA. Reasons for this decision will be given at a later date, but the effect will be that the construction preferred by the Court of Appeal in the first Kennedy appeal ([2011] EWCA Civ 367; [2011] 2 Info LR 152) will stand and that information falling within the scope of section 32(2) does not cease to be absolutely exempt upon the conclusion of the inquiry or arbitration.

The hearing continues on the application, or otherwise, of Article 10 ECHR.

Kennedy reaches the Supreme Court

Posted on | by Timothy Pitt-Payne KC

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

Two new Upper Tribunal decisions: commercial confidentiality, ministerial communications

Posted on | by Robin Hopkins

The Upper Tribunal has issued two decisions on information rights matters this week. Both are by Upper Tribunal Judge David Williams, and both include substantive treatments of some of the issues that arise most commonly in information rights litigation.

Natural Resources Wales and SI Green (UK) Ltd v Information Commissioner and Friends of the Earth Swansea [2013] UKUT 0473 (AAC) saw the Upper Tribunal overturn a First-Tier decision on commercial confidentiality under the Environmental Information Regulations 2004, concerning the operation of a landfill site near Swansea. I was not involved in the First-Tier Tribunal proceedings, but blogged on the decision here. The Upper Tribunal’s decision is here. It found that, contrary to the approach of the First-Tier Tribunal, regulation 12(5)(e) EIR (confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest) is not the same as section 41(1) of FOIA (actionable breach of confidence).

In Judge Williams’ second judgment published this week, he upheld the First-Tier Tribunal’s decision in Cabinet Office v IC and Gavin Aitchison (EA/2011/0263). Anya blogged on the First-Tier Tribunal decision here. In essence, it concerned the takeover of Rowntree by Nestle in 1988 and what, if anything, ministers in the Thatcher government had said to each other about it. Questions also arose about the relevance of the reduction of the ‘Twenty-Year Rule’ for historical records to a ‘Ten-Year Rule’. The relevant exemptions were sections 35(1)(a) and (b) (formulation or development of government policy; Ministerial communications). The Tribunal found the public interest to favour disclosure (and, as regards one part of the request, confirming or denying whether any information was held relating to Cabinet discussions on the topic). The Upper Tribunal agreed. See here: Cab Off Aitchison GIA 4281 2012-00, and also the coverage by the requester (a journalist at the York newspaper The Press) here.

Given my involvement in both cases, I don’t offer any analysis on Panopticon today. Instead, I offer them as weekend reading for enthusiasts. You’re welcome.

Robin Hopkins

Facebook fan pages: data protection buck stops with Facebook, not page owners

Posted on | by Robin Hopkins

In Re Facebook, VG, Nos. 8 A 37/12, 8 A 14/12, 8 A 218/11, 10/9/13 the Schleswig-Holstein Administrative Court has allowed Facebook’s appeals against rulings of the regional data protection authority (the ULD), Thilo Weichert.

The case involved a number of companies’ use of Facebook fan pages. The ULD’s view was that Facebook breached German privacy law, including through its use of cookies, facial recognition and other data processing. He considered that, by using Facebook fan pages, the companies were facilitating Facebook’s violations by processing users’ personal data on those pages. He ordered them to shut down the fan pages or face fines of up to €50,000.

The appellant companies argued that they could not be held responsible for data protection violations (if any) allegedly committed by Facebook, as they had no control over how that data on the pages was processed and used by the social networking site. The Administrative Court agreed.

The case raises interesting questions about where the buck stops in terms of data processing – both in terms of who controls the processing, and in terms of where they are based. Facebook is based in Ireland, without a substantive operational presence in Germany. Earlier this year, the Administrative Court found – again against the Schleswig-Holstein ULD’s ruling – that Facebook’s ‘real names’ policy (i.e. a ban on pseudonymised profiles) was a matter for Irish rather than German law.

The ULD is unlikely to be impressed by the latest judgment, given that he is reported as having said in 2011 that:

“We see a much bigger privacy issue behind the Facebook case: the main business model of Google, Apple, Amazon and others is based on privacy law infringements. This is the reason why Facebook and all the other global internet players are so reluctant in complying with privacy law: they would lose their main profit resource.”

For more on this story, see links here and here.

Robin Hopkins