DRIPA 2014 declared unlawful

In a judgment of the Divisional Court handed down this morning, Bean LJ and Collins J have declared section 1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) to be unlawful.

For the background to that legislation, see our posts on Digital Rights Ireland and then on the UK’s response, i.e. passing DRIPA in an attempt to preserve data retention powers.

That attempt has today suffered a serious setback via the successful challenges brought by the MPs David Davis and Tom Watson, as well as Messrs Brice and Lewis. The Divisional Court did, however, suspend the effect of its order until after 31 March 2016, so as to give Parliament time to consider how to put things right.

Analysis to follow in due course, but for now, here is the judgment: Davis Watson Judgment.

Robin Hopkins @hopkinsrobin

Google and the ordinary person’s right to be forgotten

The Guardian has reported today on data emerging from Google about how it has implemented the Google Spain ‘right to be forgotten’ principle over the past year or so: see this very interesting article by Julia Powles.

While the data is rough-and-ready, it appears to indicate that the vast majority of RTBF requests actioned by Google have concerned ‘ordinary people’. By that I mean people who are neither famous nor infamous, and who seek not to have high-public-interest stories erased from history, but to have low-public-interest personal information removed from the fingertips of anyone who cares to Google their name. Okay, that explanation here is itself rough-and-ready, but you get the point: most RTBF requests come not from Max Mosley types, but from Mario Costeja González types (he being the man who brought the Google Spain complaint in the first place).

As Julia Powles points out, today’s rough-and-ready is thus far the best we have to go on in terms of understanding how the RTBF is actually working in practice. There is very little transparency on this. Blame for that opaqueness cannot fairly be levelled only at Google and its ilk – though, as the Powles articles argues, they may have a vested interest in maintaining that opaqueness. Opaqueness was inevitable following a judgment like Google Spain, and European regulators have, perhaps forgivably, not yet produced detailed guidance at a European level on how the public can expect such requests to be dealt with. In the UK, the ICO has given guidance (see here) and initiated complaints process (see here).

Today’s data suggests to me that a further reason for this opaqueness is the ‘ordinary person’ factor: the Max Mosleys of the world tend to litigate (and then settle) when they are dissatisfied, but the ordinary person tends not to (Mr González being an exception). We remain largely in the dark about how this web-shaping issue works.

So: the ordinary person is most in need of transparent RTBF rules, but least equipped to fight for them.

How might that be resolved? Options seem to me to include some combination of (a) clear regulatory guidance, tested in the courts, (b) litigation by a Max Mosley-type figure which runs its course, (c) litigation by more Mr González figures (i.e. ordinary individuals), (d) litigation by groups of ordinary people (as in Vidal Hall, for example) – or perhaps (e) litigation by members of the media who object to their stories disappearing from Google searches.

The RTBF is still in its infancy. Google may be its own judge for now, but one imagines not for long.

Robin Hopkins @hopkinsrobin

Austria will not host Europe vs Facebook showdown

As illustrated by Anya Proops’ recent post on a Hungarian case currently before the CJEU, the territorial jurisdiction of European data protection law can raise difficult questions.

Such questions have bitten hard in the Europe vs Facebook litigation. Max Schrems, an Austrian law graduate, is spearheading a massive class action in which some 25,000 Facebook users allege numerous data protection violations by the social media giant. Those include: unlawful obtaining of personal data (including via plug-ins and “like” buttons); invalid consent to Facebook’s processing of users’ personal data; use of personal data for impermissible purposes, including the unlawful analysing of data/profiling of users (“the Defendant analyses the data available on every user and tries to explore users’ interests, preferences and circumstances…”); unlawful sharing of personal data with third parties and third-party applications. The details of the claim are here.

Importantly, however, the claim is against Facebook Ireland Ltd, a subsidiary of the Californian-based Facebook Inc. The class action has been brought in Austria.

Facebook challenged the Austrian court’s jurisdiction. Last week, it received a judgment in its favour from the Viennese Regional Civil Court. The Court said it lacks jurisdiction in part because Mr Schrems is not deemed to be a ‘consumer’ of Facebook’s services. In part also, it lacks jurisdiction because Austria is not the right place to be bringing the claim. Facebook argued that the claim should be brought either in Ireland or in California, and the Court agreed.

Mr Schrems has announced his intention to appeal. In the meantime, the Austrian decision will continue to raise both eyebrows and questions, particularly given that a number of other judgments in recent years have seen European courts accepting jurisdiction to hear claims against social media companies (such as Google: see Vidal-Hall, for example) based elsewhere.

The Austrian decision also highlights the difficulties of the ‘one-stop shop’ principle which remains part of the draft Data Protection Regulation (albeit in more nuanced and complicated formulation than had earlier been proposed). In short, why should an Austrian user have to sue in Ireland?

Panopticon will report on any developments in this case in due course. It will also report on the other strand of Mr Schrems’ privacy campaign, namely his challenge to the lawfulness of the Safe Harbour regime for the transferring of personal data to the USA. That challenge has been heard by the CJEU, and the Advocate General’s opinion is imminent. The case will have major implications for those whose business involves transatlantic data transfers.

Robin Hopkins @hopkinsrobin

Google Spain, freedom of expression and security: the Dutch fight back

The Dutch fighting back against the Spanish, battling to cast off the control exerted by Spanish decisions over Dutch ideologies and value judgments. I refer of course to the Eighty Years’ War (1568-1648), which in my view is a sadly neglected topic on Panopticon.

The reference could also be applied, without too much of a stretch, to data protection and privacy rights in 2015.

The relevant Spanish decision in this instance is of course Google Spain, which entrenched what has come to be called the ‘right to be forgotten’. The CJEU’s judgment on the facts of that case saw privacy rights trump most other interests. The judgment has come in for criticism from advocates of free expression.

The fight-back by free expression (and Google) has found the Netherlands to be its most fruitful battleground. In 2014, a convicted criminal’s legal battle to have certain links about his past ‘forgotten’ (in the Google Spain sense) failed.

This week, a similar challenge was also dismissed. This time, a KPMG partner sought the removal of links to stories about him allegedly having to live in a container on his own estate (because a disgruntled builder, unhappy over allegedly unpaid fees, changed the locks on the house!).

In a judgment concerned with preliminary relief, the Court of Amsterdam rejected his application, finding in Google’s favour. There is an excellent summary on the Dutch website Media Report here.

The Court found that the news stories to which the complaint about Google links related remained relevant in light of public debates on this story.

Importantly, the Court said of Google Spain that the right to be forgotten “is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The Court gave very substantial weight to the importance of freedom of expression, something which Google Spain’s critics say was seriously underestimated in the latter judgment. If this judgment is anything to go by, there is plenty of scope for lawyers and parties to help Courts properly to balance privacy and free expression.

Privacy rights wrestle not only against freedom of expression, but also against national security and policing concerns.

In The Hague, privacy has recently grabbed the upper hand over security concerns. The District Court of The Hague has this week found that Dutch law on the retention of telecommunications data should be down due to its incompatibility with privacy and data protection rights. This is the latest in a line of cases challenging such data retention laws, the most notable of which was the ECJ’s judgment in Digital Rights Ireland, on which see my post here. For a report on this week’s Dutch judgment, see this article by Maarten van Tartwijk in The Wall Street Journal.

As that article suggests, the case illustrates the ongoing tension between security and privacy. In the UK, security initially held sway as regards the retention of telecoms data: see the DRIP Regulations 2014 (and Panopticon passim). That side of the argument has gathered some momentum of late, in light of (for example) the Paris massacres and revelations about ‘Jihadi John’.

Just this week, however, the adequacy of UK law on security agencies has been called into question: see the Intelligence and Security Committee’s report entitled “Privacy and Security: a modern and transparent legal framework”. There are also ongoing challenges in the Investigatory Powers Tribunal – for example this one concerning Abdul Hakim Belhaj.

So, vital ideological debates continue to rage. Perhaps we really should be writing more about 17th century history on this blog.

Robin Hopkins @hopkinsrobin

Googling Orgies – Thrashing out the Liability of Search Engines

Back in 2008, the late lamented News of the World published an article under the headline “F1 boss has sick Nazi orgy with 5 hookers”. It had obtained footage of an orgy involving Max Mosley and five ladies of dubious virtue, all of whom were undoubtedly (despite the News of the World having blocked out their faces) not Mrs Mosley. The breach of privacy proceedings before Eady J (Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)) established that the ‘Nazi’ allegation was unfounded and unfair, that the footage was filmed by a camera secreted in “such clothing as [one of the prostitutes] was wearing” (at [5]), and also the more genteel fact that even S&M ‘prison-themed’ orgies stop for a tea break (at [4]), rather like a pleasant afternoon’s cricket, but with a rather different thwack of willow on leather.

Since that time, Mr Mosley’s desire to protect his privacy and allow the public to forget his penchant for themed tea breaks has led him to bring or fund ever more litigation, whilst simultaneously managing to remind as many people as possible of the original incident. His latest trip to the High Court concerns the inevitable fact of the internet age that the photographs and footage obtained and published by the News of the World remain readily available for those in possession of a keyboard and a strong enough constitution. They may not be on a scale of popularity as last year’s iCloud hacks, but they can be found.

Alighting upon the ruling of the CJEU in Google Spain that a search engine is a data controller for the purposes of the Data Protection Directive (95/46/EC) (on which see the analysis here), Mr Mosley claimed that Google was obliged, under section 10 of the Data Protection Act 1998, to prevent processing of his personal data where he served a notice requesting it to do so, in particular by not blocking access to the images and footage which constitute his personal data. He also alleged misuse of private information. Google denied both claims and sought to strike them out. The misuse of private information claim being (or soon to be) withdrawn, Mitting J declined to strike out the DPA claim: Mosley v Google Inc [2015] EWHC 59 (QB). He has, however, stayed the claim for damages under section 13 pending the Court of Appeal’s decision in Vidal-Hall v Google (on which see the analysis here).

Google ran a cunning defence to what, post-Google Spain, might be said to be a strong claim on the part of a data subject. It relied on Directive 2000/31/EC, the E-Commerce Directive. Article 13 protects internet service providers from liability for the cached storage of information, providing they do not modify the information. Mitting J was content to find that by storing the images as thumbnails, Google was not thereby modifying the information in any relevant sense: at [41]. Article 15 of the E-Commerce Directive also prohibits the imposition of a general obligation on internet service providers to monitor the information they transmit or store.

The problem for Mitting J was how to resolve the interaction between the E-Commerce Directive and the Data Protection Directive; the latter of which gives a data subject rights which apparently extend to cached information held by internet service providers which the former of which apparently absolves them of legal responsibility for. It was pointed out that recital (14) and article 1.5(b) of the E-Commerce Directive appeared to make that instrument subject to the Data Protection Directive. It was also noted that Google’s argument did not sit very comfortably with the judgment (or at least the effect of the judgment) of the CJEU in Google Spain.

Mitting J indicated that there were only two possible answers: either the Data Protection Directive formed a comprehensive code, or the two must be read in harmony and given full effect to: at [45]. His “provisional preference is for the second one”: at [46]. Unfortunately, the judgment does not then go on to consider why that is so, or more importantly, how both Directives can be read in harmony and given full effect to. Of course, on a strike out application provisional views are inevitable, but it leaves rather a lot of legal work for the trial judge, and one might think that it would be difficult to resolve the interaction without a reference to the CJEU. What, for example, is the point of absolving Google of liability for cached information if that does not apply to any personal data claims, which will be a good way of re-framing libel/privacy claims to get around Article 13?

The Court also doubted that Google’s technology really meant that it would have to engage in active monitoring, contrary to Article 15, because they may be able to do so without “disproportionate effort or expense”: at [54]. That too was something for the trial judge to consider.

So, while the judgment of Mitting J is an interesting interlude in the ongoing Mosley litigation saga, the final word certainly awaits a full trial (and/or any appeal by Google), and possibly a reference. All the judgment decides is that Mr Mosley’s claim is not so hopeless it should not go to trial. Headlines reading ‘Google Takes a Beating (with a break for tea)’ would be premature. But the indications given by Mitting J are not favourable to Google, and it may well be that the footage of Mr Mosley will not be long for the internet.

Christopher Knight

Data protection: three developments to watch

Panopticon likes data protection, and it likes to keep its eye on things. Here are three key developments in the evolution of data protection law which, in Panopticon’s eyes, are particularly worth watching.

The right to be forgotten: battle lines drawn

First, the major data protection development of 2014 was the CJEU’s ‘right to be forgotten’ judgment in the Google Spain case. Late last year, we received detailed guidance from the EU’s authoritative Article 29 Working Party on how that judgment should be implemented: see here.

In the view of many commentators, the Google Spain judgment was imbalanced. It gave privacy rights (in their data protection guise) undue dominance over other rights, such as rights to freedom of expression. It was clear, however, that not all requests to be ‘forgotten’ would be complied with (as envisaged by the IC, Chris Graham, in an interview last summer) and that complaints would ensue.

Step up Max Moseley. The BBC reported yesterday that he has commenced High Court litigation against Google. He wants certain infamous photographs from his past to be made entirely unavailable through Google. Google says it will remove specified URLs, but won’t act so as to ensure that those photographs are entirely unobtainable through Google. According to the BBC article, this is principally because Mr Moseley no longer has a reasonable expectation of privacy with respect to those photographs.

The case has the potential to be a very interesting test of the boundaries of privacy rights under the DPA in a post-Google Spain world.

Damages under the DPA

Second, staying with Google, the Court of Appeal will continue its consideration of the appeal in Vidal-Hall and Others v Google Inc [2014] EWHC 13 (QB) in February. The case is about objections against personal data gathered through Apple’s Safari browser. Among the important issues raised by this case is whether, in order to be awarded compensation for a DPA breach, one has to establish financial loss (as has commonly been assumed). If the answer is no, this could potentially lead to a surge in DPA litigation.

The General Data Protection Regulation: where are we?

I did a blog post last January with this title. A year on, the answer still seems to be that we are some way off agreement on what the new data protection law will be.

The latest text of the draft Regulation is available here – with thanks to Chris Pounder at Amberhawk. As Chris notes in this blog post, the remaining disagreements about the final text are legion.

Also, Jan Philipp Albrecht, the vice-chairman of the Parliament’s civil liberties committee, has reportedly suggested that the process of reaching agreement may even drag on into 2016.

Perhaps I will do another blog post in January 2016 asking the same ‘where are we?’ question.

Robin Hopkins @hopkinsrobin