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So there we have it: FOIA is working well and does not need to be substantially reformed. These are the overall conclusions of the FOIA review commission, as confirmed today by Cabinet Office Minister Matt Hancock (see the BBC report here). This outcome will come as a surprise (and a huge relief) to many who had believed that the commission would follow the Blair line and conclude that the FOIA genie needed to be put firmly back in its bottle. So apparently a triumphant outcome for those in favour of the transparency agenda, but a sorry day for those who, like Mr Blair, believe that FOIA has had and continues to have a ruinous effect on government.

The full report is due to be published shortly. It will be interesting to see whether, despite Mr Hancock’s announcement, there are some proposed changes which may yet have a rather hobbling effect on the FOIA regime. For example, it is not presently clear whether the report may effectively invite the Government to press ahead with a fees regime for FOIA tribunal cases. That said some media reports are already suggesting that, in response to the report, the Government has ruled out introducing a fees and has also opted not to shore up the veto regime, which was so extensively undermined in Evans v Information Commissioner (see here).

Of course, FOIA is itself a highly politicised football and it is hard to imagine that reining in a legislative regime designed to put power in the hands of the people would have been anything other than a fairly politically toxic proposition for the Government. Certainly, the deep opposition to such a proposition voiced by Labour politicians, such as Tom Watson MP, not to mention Conservative politicians such as David Davis MP, can hardly have reassured the Government that introducing restrictions on the FOIA regime would have been a political walk in the park.

An interesting question which many will now be pondering is whether the conclusions of the commission may actually add grist to the mill of those who are campaigning for an extension of the FOIA regime. For example, one wonders whether in the months to come we shall see a renewed focus on opening up the FOIA regime so that it applies to privatised public functions (see this further Guardian report on Tom Watson MP’s comments on this issue). One thing is for sure however, there will be further discussion both of the commission’s report and its aftermath on Panopticon.

Anya Proops QC

The Northern Irish courts have this week reached an important judgment in a case involving the hosting of unlawful content on youtube. Readers are referred to this helpful Inforrm post on the judgment by Olswang’s Ashley Hurst and Emma Cross.

Anya Proops QC

The law on media reporting of private proceedings continues to develop with the judgment of the Court of Appeal in Re W [2016] EWCA Civ 113. The decision arises out of the care proceedings that followed the death of 13-month old Poppi Worthington which attracted very high levels of public interest and media coverage.

In November 2015, the trial judge (Jackson J) had made various orders allowing for publicity and media attendance at an upcoming fact finding hearing.  These included permission for daily reporting of that hearing, something all parties and judges agreed was very unusual.  These orders were promptly appealed to the Court of Appeal which announced at the time that the appeal would only be allowed to a very limited extent, with its reasoned judgment to follow.  That judgment has now been published and is available here.

The key points from the judgment of McFarlane LJ (which whom Macur and King LJJ agreed) can be summarised as follows: Continue reading →

Like a baby found in a basket of reeds, the long-awaited review of the Independent Press Standards Organisation (IPSO) has appeared over the horizon.

Today IPSO issued a press release announcing the appointment of Sir Joseph Pilling, a retired civil servant, to conduct a review of its independence and effectiveness (for coverage of which see here). The review will be assisted by 11KBW’s own Zoe Gannon.

The terms of reference are available on its website and it is inviting submissions from the general public and key stakeholders. I suspect regular readers of Panopticon will have a lot of things to say (at least some of which will not be a Moses-based pun) and may want to get in touch.

In any event, we look forward to hearing what Sir Joseph concludes on whether IPSO is successfully regulating the press. The plan is for the review to have concluded in six months.

Christopher Knight

The question of how data protection rights cash out within the online environment is without doubt one of the more difficult questions which data privacy practitioners have to tackle. One major area of contention is the extent to which data protection legislation applies to ostensibly anonymous, impersonal online data. This is an issue which our own Court of Appeal considered last year in the case of Vidal-Hall v Google. In that case, the Court of Appeal readily accepted that there was at the very least a serious issue to be tried on the question of whether tracking data used by Google to track the browsing activities of Google users amounted to ‘personal data’. This was despite the fact that Google did not generally know the name of the user in question: its tracking operation entailed the tracking of individual devices, rather than named individuals. According to the Court, there was a serious issue to be tried the question of whether the tracking data amounted to ‘personal data’, particularly in view of the way in which Google’s appeared effectively to individuate end users through the use of cookie technology.

What then of IP addresses? Can they too amount to personal data, despite the fact that they may not per se themselves yield any specific name or other traditional identifier? This is the issue which the CJEU will be addressing in the forthcoming case of: Breyer (Case C-582/14), due to be heard by the CJEU on 25 February 2016. Whilst of course nothing would give me greater pleasure than to wax lyrical on the particular technical arguments which lie behind this case, I feel I must defer to this easy-to-follow analysis on EU Law Radar. But I will just point out that as long ago as 2007 the Article 29 EU Working Party was prepared to express the view that the definition of ‘personal data’ in the Data Protection Directive was wide enough to encompass IP addresses (see its Opinion 4/2007). Given the current direction of travel within Europe in terms of giving online data privacy legislation some bite, it would not be altogether surprising if the CJEU took the same view.

Anya Proops