Those of you hoping that this post will announce the conclusion of the General Data Protection Regulation will be disappointed. That stocking remains to be filled. There are, however, various other relevant legislative updates from Brussels worth pointing readers in the direction of. Continue reading
E-Privacy Goes Mobile
Although most readers of this blog will be familiar, to some extent, with the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), they are a rarely sighted beast in the reported jurisprudence. Panopticon is aware of individual damages claims brought in the County Courts for small sums, but even they are few and far between.
The recent judgment of Nicholas Lavender QC, sitting as Deputy, in Lebara Mobile Ltd & others v Lycamobile UK Ltd & others [2015] EWHC 3318 (Ch) is accordingly worth a read for a glimpse into how PECR may have a part to play in major commercial disputes. Continue reading
Tentative Trilogu-ery
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
The Independent Commission on FOI – Update
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
Expectations of privacy abroad
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
Legislative process
As is well known, Section 35 of FoIA creates a class-based exemption from disclosure designed to protect the effective formulation of Government policy; and Section 36 creates an exemption related to effective conduct of public affairs. The scope of the Section 35 exemption is that information may be exempt if it relates to the formulation or development of Government policy. However, the wide scope of the exemption is narrowed by the provision that once a decision as to Government policy has been taken statistical information used to provide an informed background to the decision is no longer exempt. Moreover, in determining whether the public interest in maintaining the exemption outweighs the public interest in its disclosure, regard must be had to the particular public interest in the disclosure of factual information that has been used, or is intended to be used, to provide an informed background to decision making. Continue reading