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In May 2012, Transport for London licensed Uber London Limited as an operator of private hire vehicles in London.

Uber is controversial.  It’s a good example of how new technology can disrupt existing business models in unexpected ways.  One controversy is addressed by Ouseley J in Transport for London v Uber London Limited and others [2015] EWHC 2918 (Admin):  whether the way in which the Uber fare is calculated infringes the criminal prohibition on the use of a taximeter in a London private hire vehicle. Answer – it doesn’t.

What does any of this have to do with Panopticon?  Our usual concerns, broadly speaking, are with access to public sector information, and with information privacy (including its interaction with freedom of expression).  But these fields are fundamentally shaped by developments in the technology that is used for collecting, sharing and using information.  A wider understanding of the legal issues to which those developments can give rise is valuable, even if it takes us a little outside the usual ambit of this blog.

So:  in London there are black cabs, and there are private hire vehicles (PHVs).  PHVs are subject to three-fold licensing:  the operator, the vehicle, and the driver must all be licensed.  One of the restrictions under which PHVs operate is that it is a criminal offence for the vehicle to be equipped with a taximeter: see section 11(1) of the Private Hire Vehicles (London) Act 1998.  A taximeter is defined by section 11(3) as “a device for calculating the fare to be charged in respect of any journey by reference to the distance travelled or time elapsed since the start of the journey (or a combination of both)”.

Uber operates in London as a licensed PHV operator (though the vehicles in its network include both PHVs and black cabs).  It uses technology that – as Ouseley J points out – was not envisaged when the relevant legislation was introduced in 1998.  “As was agreed, the changes brought about by the arrival of Google, the Smartphone equipped with accurate civilian use GPS, mobile internet access and in-car navigation systems, would not have been within the contemplation of Parliament in 1998.” (Google was in fact incorporated in 1998, and what it has to do with the case is obscure, but let that pass).

In order for the Uber system to operate, both the driver and the customer must have a smartphone, and must download the Uber Driver App and Customer App respectively.  The customer makes a booking using the Customer App.  The booking is transmitted to Uber’s servers in the US, and thence to the smartphone of the driver of the nearest vehicle in London – if that driver does not accept the booking, it is sent to the next nearest vehicle.  When the driver picks up the customer, the driver presses the “begin trip” icon on the Driver App.  At the end of the journey he presses “end trip”.  Signals are then sent to Uber’s servers in the US by the driver’s Smartphone, providing them with GPS data from the driver’s smartphone and time details.  One of the servers (“Server 2”) obtains information from another server about the relevant fare structure, and then calculates the fare and transmits information to the Driver App and the Customer App about the amount charged.  The customer’s credit or debit card is charged for the journey.

Does all this mean that the vehicle is equipped with a taximeter?

No, said Ouseley J, in proceedings brought by Transport for London seeking a declaration that PHVs in the Uber network are not equipped with a taximeter.

The argument before Ouseley J was that the driver’s smartphone, operating using the Driver App, was a taximeter.  But the fatal objection to this argument was that the fare was calculated by Server 2 not by the smartphone, and hence the calculation was done remotely and not in the vehicle itself.  To contravene section 11, it was not sufficient that the calculation was done using information uploaded from the smartphone, and that the calculation was then transmitted to and received on the smartphone.  Hence the smartphone was not a device falling within section 11(3). Moreover, even if the smartphone was a relevant device, the vehicle was not equipped with it; it was the driver who was equipped, and so the prohibition in section 11(1) was not infringed in any event.

Ousely J considered the case-law about the need to adopt an updating or “always speaking” construction of legislation, to take account of technological or scientific developments: see R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687.  This case law had no bearing, since the section 11 was in general terms and entirely capable of being applied to modern technology; there was no need to adopt any updating construction of the section.

The Uber case is a useful reminder that controversies about the implications of developments such as big data, cloud computing, and mobile internet access, are not just about privacy and data protection.  Rather, the issues are pervasive and can be expected to affect every corner of the law (and of politics, the economy, and society).

The mobile data devices that we use are constantly interacting with other devices and information storage facilities, including servers.  For the purpose of our daily lives, usually all we are interested in is specific transactions (like booking and paying for a PHV): we do not need to think about the different stages of information processing that underpin the transaction.  But for regulatory purposes, breaking down a transaction into those stages, and understanding when and how each stage takes place, can be essential.  Uber drivers and customers don’t need to think about Server 2:  but if you want to know whether Uber breaks the law, Server 2 is crucial.

 

 

 

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).

The commission set up by the Government to review FOIA, in the wake of the Evans judgment, has today issued a call for evidence, as part of a six week consultative exercise (see here). The questions posed in the call for evidence tend to reconfirm the overall impression that the commission is keen to explore ways in which FOIA can be recalibrated so as to be a more State-friendly enactment. The commission has made clear that it is particularly focussed on the following six questions:

‘Question 1: What protection should there be for information relating to the internal deliberations of public bodies? For how long after a decision does such information remain sensitive? Should different protections apply to different kinds of information that are currently protected by sections 35 and 36?

Question 2: What protection should there be for information which relates to the process of collective Cabinet discussion and agreement? Is this information entitled to the same or greater protection than that afforded to other internal deliberative information? For how long should such material be protected?

Question 3: What protection should there be for information which involves candid assessment of risks? For how long does such information remain sensitive?

Question 4: Should the executive have a veto (subject to judicial review) over the release of information? If so, how should this operate and what safeguards are required? If not, what implications does this have for the rest of the Act, and how could government protect sensitive information from disclosure instead?

Question 5: What is the appropriate enforcement and appeal system for freedom of information requests?

Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? Which kinds of requests do impose a disproportionate burden?’

No doubt much can be gleaned about the commission’s direction of travel from these questions. However, the commission’s repeated use of the ‘how long’ question is particularly interesting. Query whether it suggests that the commission is looking to propose minimum terms for the disclosure of certain categories of information, for example under ss. 35 and 36. Such a blanket approach to the protection of particular classes of information under these provisions would of course would mark a significant departure from the current more case/fact-specific approach presupposed by these provisions as currently framed. No doubt further commentary on Panopticon will follow in due course.

Anya Proops

There has been a lot of excitement this week about EU-US data sharing in the light of the Schrems judgment (see not least the stream of posts on the judgment on our very own Panopticon). Of course what triggered the Schrems litigation was the Snowden revelations concerning Prism, the US government’s mass surveillance programme, revelations which themselves forced an intensive debate on the protection of digital privacy rights on both sides of the Atlantic. Against that background, it is very interesting to learn that yesterday the Californian Governor, Jerry Brown, signed into law an Electronic Communications Privacy Act designed to place substantial controls around the accessing of digital communications by law enforcement agencies (see further the report from the Electronic Frontier Foundation here). This important legislative development, which essentially subjects the access regime to a system of judicial warrants, suggests that California is very much ahead of the curve within the US when it comes to recognising the need to ensure greater protection for data privacy rights within the digital environment. It is also worth noting that the tech companies themselves appear to have played a strong role in the achievement of this more privacy-sensitive approach to law enforcement. This is hardly surprising given the impact which the Snowden revelations have had on consumer trust in the tech giants of Silicon Valley. It remains to be seen whether the pro-privacy stance being adopted in California is going to attract law-makers in the States as a whole. However, it is interesting to note that the new law in California was itself born out of a bipartisan bill, something which itself reconfirms the fact that the protection of privacy rights is an issue which transcends traditional party politics.

Anya Proops

It has been an admirable trend of Tribunals in FOIA cases over the last few years that they have been increasingly sceptical of assertions on the part of public authorities that disclosure will provide chilling effects on their activities. An inevitable pattern forms of an insistence that the sky will fall in if information is released, information is released (or leaked), and the sky appears not to fall in. Government grinds on. But Judge Jacobs has provided a little more comfort for such arguments in DWP v Information Commissioner, Slater & Collins [2015] UKUT 535 (AAC). The case related to various risk register documents related to Universal Credit.

Before the FTT (see here) the DWP’s evidence was criticised for failing to provide any concrete evidence of ways in which this chilling effect had manifested itself across Government and noted that a different, but related, document had been leaked and had not appeared to have any chilling effect. Judge Jacobs was not impressed by this. He condemned the reasoning as sufficiently irrational to amount to an error of law because it had required evidence of something which would be very unlikely to be able to be evidenced (i.e. there wouldn’t be a paper trail of civil servants being circumspect) and because it compared the disputed information with a document it hadn’t seen (the leaked document). That error was sufficiently important to impugn the judgment as a whole, even though it was just one paragraph in a lengthy decision.

One can see the point about drawing conclusions from a document the Tribunal had not actually seen, but the other aspect of the criticism is more problematic. There might be expected to be some evidence of a chilling effect, if only by a comparison of the way in which civil servants worked before and after relevant events. Civil servants have duties to advise frankly which Tribunals have been rightly slow to conclude they would avoid complying with. The Justice Select Committee has previously found little evidence of such a chilling effect across Government (see the summary here). It is particularly difficult to see how the approach is especially consistent with that of Charles J in Department of Health v Information Commissioner & Lewis [2015] UKUT 159 (AAC), in which a Departmental tendency to indulge in a Mandy Rice-Davies approach was noted, along with a cautionary requirement for specific evidence of harm (see my commentary here). In short, the approach of Judge Jacobs is a little too close for comfort to allowing bare assertions of a nebulous chilling effect provided by a professional civil service. One must recognise the difficulties of proving a counter-factual, but whether Slater or Lewis more accurately casts the balance is a matter for some debate.

Judge Jacobs also noted that evidence will need to consider what officials ought to do as an aspect of the Tribunal’s predictive duties in relation to the actual effect of disclosure. More unusually, he also indicated a willingness (obiter) to open up the question of the trouble that can be caused by the media taking a selective approach to what it publishes and putting its own spin on that material as a relevant aspect. The ICO has long taken a clear line – applied in numerous cases by the FTT – that subsequent use and possible misrepresentation is, essentially, tough. Public authorities have to take it on the chin as part of the wider debate and can publish it with explanatory material which mitigates the risk of decontextualizing. Given the ability of people to take pretty much any sentence out of context, this would appear to be a very anti-disclosure line of reasoning of very broad scope and it will be interesting to see if it is returned to in future cases in which it matters more directly.

In the meantime, Judge Jacobs appears to have adopted the words of House Stark on the chilling effect: “Winter is Coming”.

Julian Milford appeared for the DWP and Robin Hopkins for the ICO.

Christopher Knight