WordPress + Bootstrap

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

In 1913, Parliament was debating the Welsh Church Disestablishment Bill.  F. E. Smith described it as “a Bill which has shocked the conscience of every Christian community in Europe”.  This prompted a stinging rebuke from G.K. Chesterton:  was it remotely plausible that, say Breton fishermen, or Russian peasants, had the slightest interest in any of this?

“ Do they, fasting, trembling bleeding

Wait the news from this our city?

Groaning, ‘That’s the Second Reading!’

Hissing ‘There is still Committee!’

If the voice of Cecil falters,

If McKenna’s point has pith,

Do they tremble for their altars?

Do they, Smith?”

A hundred years later, the European Parliament is debating data protection reform.  To suggest that every citizen of the Union is hanging on the words of Jan-Philipp Albrecht or Viviane Reding would invite Chestertonian derision.  But there must be a number of businesses that are trembling (if not perhaps fasting or bleeding, as yet) at talk of fines of up to 100 million Euros (or 5% of global turnover, whichever is the greater) for breach of the new requirements.  And the level of interest among ordinary citizens, at any rate in some countries in the EU, should not be underestimated.

The above reflections are prompted by the news that the LIBE Committee of the European Parliament has adopted an agreed position on the proposed new Regulations and Directive.  This gives a mandate for the rapporteurs – MEPs Jan-Philipp Albrecht and Dimitrious Droutsas – to negotiate with the EU Council on Parliament’s behalf.

The full text of the proposed version of the legislation approved by the LIBE Committee has not been made public.  However, this press release from the Commission indicates that there are some important differences between the Commission’s original proposal in January 2012 and the text being put forward by the LIBE Committee.  Notably, the Committee is proposing maximum sanctions of 100 million euros or up to 5% of annual worldwide turnover, as compared with 1 million euros or up to 2% of annual worldwide turnover.

The Committee also wishes to strengthen the territorial scope of the reforms.  The Commission’s original proposal was that in specified circumstances the Regulation should apply to the processing of personal data of subject residing in the Union, by a controller not established in the Union.  The Committee is proposing that the Regulation should apply to the processing by a controller or processor not established in the Union.

The Commission’s proposal was that this extra-territorial reach of the Regulation should apply where the processing activities were related to the offering of goods and services to data subjects in the Union, or to the monitoring of their behaviour.  The Committee is proposing that the Regulation should apply to the offering of goods or services to data subjects in the Union irrespective of whether a payment of the data subject is required.  So, on the Committee’s text, a social networking site established outside the EU would be caught if it offered membership to individuals in the Union, even if membership was free.   The Committee also proposes that the Regulation should apply to the monitoring of such subjects (not just to the monitoring of their behaviour).

The Committee’s text also would prohibit disclosure outside the EU of personal data processed in the EU, where such disclosure was ordered by a non-EU court or tribunal, unless the transfer was authorised in advance by the relevant EU national data protection authority.  So, it would appear, if a US court ordered disclosure of personal data about UK citizens, then a US company that complied with that order without the prior authorisation of the ICO would be in breach of the Regulation and could be fined.

Media and online comment (see e.g. here and here) has suggested that the European Parliament’s current approach – strengthening the protection for data subjects, in particular in relation to international transfers – is partly a reaction to the revelations by Edward Snowden about the disclosure of personal information to the NSA.

The next step will be for the Council to decide on its position.  There will be a Council discussion between heads of state and government on 24th – 25th October, relating to the digital single market, followed by a meeting of Justice Ministers on data protection reform on 4th – 5th December.  There will then be a “trilogue” between Parliament, the Council, and the Commission.  The President of the European Commission has called for a final text to be agreed before the European Parliamentary elections in May 2014 – though it seems likely that there will be a further 2 years or so before the new legislation comes into effect.

Timothy Pitt-Payne

 

 Niebel v Information Commissioner is the first Tribunal decision about penalties under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  Mr.Niebel successfully appealed against a penalty of £300,000.

The First-tier Tribunal stated that the material before them showed that Mr. Niebel and his company, Tetrus, had sent hundreds of thousands of unsolicited text messages seeking out potential claims for the mis-selling of PPI or for accidents.  There was no dispute that he had breached the requirements under PECR regulation 22, relating to the sending of text messages for direct marketing.  Until 26th May 2011 there was no power to impose penalties for such a breach, but with effect from that date the monetary penalty provisions in the Data Protection Act 1998 (sections 55A-E of the Act) had been extended to cover breaches of PECR.

In the present case, the monetary penalty notice was imposed on 26th November 2011, requiring payment of £300,000.  The Tribunal emphasised the importance of a clear statement in the notice identifying the contravention for which a penalty was imposed.  At the very least this should indicate the regulation contravened, the content of the contravention, and its scale, including roughly how many individual acts there were and how many people were affected.

In this case the Tribunal considered that the notice had failed clearly to identify the contravention.  The notice seemed to be confined to 411 cases, involving a total of 732 texts, in which the recipient had complained to the ICO.  However, some parts of the penalty notice referred to contravention on a much wider scale.

A further difficulty was that the ICO subsequently discovered that most of the 732 texts referred to had been sent before 26th May 2011 (the date when the power to issue penalties came into effect); and the ICO accepted that these earlier texts could not properly be taken into account.  The ICO therefore relied at the Tribunal hearing on 286 texts, not 732:  the number of affected individuals was not stated, but the Tribunal indicated (if the ratio of texts to complaints was consistent) that this would be about 160.

The appeal was brought on one short point.  It was argued that the contravention was not of a kind likely to cause substantial damage or substantial distress, since it was now described as relating to just 286 texts; therefore one of the statutory preconditions for a monetary penalty was not satisfied.

The Tribunal proceeded on the basis that the likelihood of damage and distress should be assessed by reference to the 286 texts now relied upon by the ICO as constituting the contravention, rather than by reference to other evidence showing very large numbers of unsolicited text messages.  On this basis, the requirement that the contravention was not likely to cause substantial damage or substantial distress was not satisfied.  As far as damage was concerned, recipients might incur charges for replying “stop”, and there might be a small charge if texts were received abroad, but none of this was likely to cause substantial damage.  As to distress, the Tribunal considered that the effect of the contravention was likely to be widespread irritation rather than substantial distress.  The Tribunal allowed the appeal and cancelled the penalty notice.

The decision leaves open one very important question.  Would the sending of hundreds of thousands of unwanted marketing messages be likely to give rise to substantial damage or substantial distress?  Could one say that, in aggregate, the small costs imposed on a very large number of individuals amounted to substantial damage? Or that the irritation caused to such a large number constituted substantial distress? This issue will no doubt be of great importance in future appeals about monetary penalties under PECR.

Two of my colleagues appeared in this case:  James Cornwell for the ICO, and Robin Hopkins for the Appellant.  Neither of them, of course, bears any responsibility for the content of this blog post.

Timothy Pitt-Payne