Google and the DPA – RIP section 13(2)

Well, isn’t this an exciting week (and I don’t mean Zayn leaving One Direction)? First, Evans and now Vidal-Hall. We only need Dransfield to appear before Easter and there will be a full red bus analogy. Robin opened yesterday’s analysis of Evans by remarking on the sexiness of FOIA. If there is one thing you learn quickly as an information law practitioner, it is not to engage in a sexiness battle with Robin Hopkins. But high-profile though Evans is, the judgment in Vidal-Hall will be of far wider significance to anyone having to actually work in the field, rather than simply tuning every now and then to see the Supreme Court say something constitutional against a FOIA background. Vidal-Hall might not be the immediate head-turner, but it is probably going to be the life-changer for most of us. So, while still in the ‘friend zone’ with the Court of Appeal, before it all gets serious, it is important to explain what Vidal-Hall v Google [2015] EWCA Civ 311 does.

The Context

The claims concern the collection by Google of information about the internet usage of Apple Safari using, by cookies. This is known as “browser generated information” or “BGI”. Not surprisingly, it is used by Google to more effectively target advertising at the user. Anyone who has experienced this sort of thing will know how bizarre it can sometimes get – the sudden appearance of adverts for maternity clothes which would appear on my computer followed eerily quickly from my having to research pregnancy information for a discrimination case I was doing. Apple Safari users had not given their consent to the collection of BGI. The Claimants brought claims for misuse of private information, breach of confidence and breach of the DPA, seeking damages under section 13. There is yet to be full trial; the current proceedings arise because of the need to serve out of the jurisdiction on Google.

The Issues

These were helpfully set out in the joint judgment of Lord Dyson MR and Sharp LJ (with whom Macfarlane LJ agreed) at [13]. (1) whether misuse of private info is a tort, (2) whether damages are recoverable under the DPA for mere distress, (3) whether there was a serious issue to be tried that the browser generated data was personal data and (4) whether permission to serve out should have been refused on Jameel principles (i.e. whether there was a real and substantial cause of action).

Issues (1) and (4) are less important to readers of this blog, and need only mention them briefly (#spoilers!). Following a lengthy recitation of the development of the case law, the Court held that the time had come to talk not of cabbages and kings, but of the tort of misuse of private information, rather than being an equitable action for breach of confidence: at [43], [50]-[51]. This allowed service out under the tort gateway in PD6B. The comment of the Court on issue (4) is worth noting, because it held that although claims for breach of the DPA would involve “relatively modest” sums in damages, that did not mean the claim was not worth the candle. On the contrary, “the damages may be small, but the issues of principle are large”: at [139].

Damages under Section 13 DPA

Issue (2) is the fun stuff for DP lawyers. As we all know, Johnson v MDU [2007] EWCA Civ 262 has long cast a baleful glare over the argument that one can recover section 13 damages for distress alone. The Court of Appeal have held such comments to be obiter and not binding on them: at [68]. The word ‘damage’ in Art 23 of the Directive had to be given an autonomous EU law meaning: at [72]. It also had to be construed widely having regard to the underlying aims of the legislation: the legislation was primarily designed to protect privacy not economic rights and it would be strange if data subjects could not recover compensation for an invasion of their privacy rights merely because they had not suffered pecuniary loss, especially given Article 8 ECHR does not impose such a bar: at [76]-[79]. However, it is not necessary to establish whether there has also been a breach of Article 8; the Directive is not so restricted (although something which does not breach Article 8 is unlikely to be serious enough to have caused distress): at [82].

What then to do about section 13(2) which squarely bars recovery for distress alone and is incompatible with that reading of Article 23? The Court held it could not be ‘read down’ under the Marleasing principle; Parliament had intended section 13(2) to impose this higher test, although there was nothing to suggest why it had done so: at [90]-[93]. The alternative was striking it down on the basis that it conflicted with Articles 7 and 8 of the EU Charter of Fundamental Rights, which the Court of Appeal accepted. In this case, privacy and DP rights were enshrined as fundamental rights in the Charter; breach of DP rights meant that EU law rights were engaged; Article 47 of the Charter requires an effective remedy in respect of the breach; Article 47 itself had horizontal direct effect (as per the court’s conclusion in Benkharbouche v Embassy of Sudan [2015] EWCA Civ 33); the Court was compelled to disapply any domestic provision which offended against the relevant EU law requirement (in this case Article 23); and there could be no objections to any such disapplication in the present case e.g. on the ground that the Court was effectively recalibrating the legislative scheme: at [95]-[98], [105].

And thus, section 13(2) was no more. May it rest in peace. It has run down the curtain and joined the bleedin’ choir invisible.

What this means, of course, is a potential flood of DP litigation. All of a sudden, it will be worth bringing a claim for ‘mere’ distress even without pecuniary loss, and there can be no doubt many will do so. Every breach of the DPA now risks an affected data subject seeking damages. Those sums will invariably be small (no suggestion from the Court of Appeal that Article 23 requires a lot of money), and perhaps not every case will involve distress, but it will invariably be worth a try for the data subject. Legal costs defending such claims will increase. Any data controllers who were waiting for the new Regulation with its mega-fines before putting their house in order had better change their plans…

Was BGI Personal Data

For the DP geeks, much fun was still to be had with Issue (3). Google cannot identify a particular user by name; it only identifies particular browsers. If I search for nasal hair clippers on my Safari browser, Google wouldn’t recognise me walking down the street, no matter how hirsute my proboscis. The Court of Appeal did not need to determine the issue, it held only that there was a serious issue to be tried. Two main arguments were run. First, whether the BGI looked at in isolation was personal data (under section 1(1)(a) DPA); and secondly, whether the BGI was personal data when taken together with gmail account data held by Google (application of limb (b)).

On the first limb, the Court held that it was clearly arguable that the BGI was personal data. This was supported by the terms of the Directive, an Article 29 WP Opinion and the CJEU’s judgment in Lindqvist. The fact that the BGI data does not name the individual is immaterial: it clearly singles them out, individuates them and therefore directly identifies them: at [115] (see more detail at [116]-[121]).

On the second limb, it was also clearly arguable that the BGI was personal data. Google had argued that in practice G had no intention of amalgamating them, therefore there was no prospect of identification. The Court rejected this argument both on linguistic grounds (having regard to the wording of the definition of personal data, which does not require identification to actually occur) and on purposive grounds (having regard to the underlying purpose of the legislation): at [122]-[125].

A third route of identification, by which enable individual users could be identified by third parties who access the user’s device and then learn something about the user by virtue of the targeted advertising, the Court concluded it was a difficult question and the judge was not plainly wrong on the issue, and so it should be left for trial: at [126]-[133].

It will be interesting to see whether the trial happens. If it does, there could be some valuable judicial discussion on the nature of the identification question. For now, much is left as arguable.


The Court of Appeal’s judgment in Vidal-Hall is going to have massive consequences for DP in the UK. The disapplication of section 13(2) is probably the most important practical development since Durant, and arguably more so than that. Google are proposing to seek permission to appeal to the Supreme Court, and given the nature of the issues they may well get it on Issues (1) and (2) at least. In meantime, the Court’s judgment will repay careful reading. And data controllers should start looking very anxiously over their shoulders. The death of their main shield in section 13(2) leaves them vulnerable, exposed and liable to death by a thousand small claims.

Anya Proops and Julian Milford appeared for the ICO, intervening in the Court of Appeal.

Christopher Knight

PS No judicial exclamation marks to be found in Vidal-Hall. Very restrained.

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

How to apply the DPA

Section 40 of FOIA is where the Freedom of Information Act (mantra: disclose, please) intersects with the Data Protection Act 1998 (mantra: be careful how you process/disclose, please).

When it comes to requests for the disclosure of personal data under FOIA, the DPA condition most commonly relied upon to justify showing the world the personal data of a living individual is condition 6(1) from Schedule 2:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

That condition has multiple elements. What do they mean, and how do they mesh together? In Goldsmith International Business School v IC and Home Office (GIA/1643/2014), the Upper Tribunal (Judge Wikeley) has given its view. See here Goldsmiths. This comes in the form of its endorsement of the following 8 propositions (submitted by the ICO, represented by 11KBW’s Chris Knight).

Proposition 1: Condition 6(1) of Schedule 2 to the DPA requires three questions to be asked:

(i) Is the data controller or the third party or parties to whom the data are disclosed pursuing a legitimate interest or interests?

(ii) Is the processing involved necessary for the purposes of those interests?

(iii) Is the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject?

Proposition 2: The test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied.

Proposition 3: “Necessity” carries its ordinary English meaning, being more than desirable but less than indispensable or absolute necessity.

Proposition 4: Accordingly the test is one of “reasonable necessity”, reflecting the European jurisprudence on proportionality, although this may not add much to the ordinary English meaning of the term.

Proposition 5: The test of reasonable necessity itself involves the consideration of alternative measures, and so “a measure would not be necessary if the legitimate aim could be achieved by something less”; accordingly, the measure must be the “least restrictive” means of achieving the legitimate aim in question.

Proposition 6: Where no Article 8 privacy rights are in issue, the question posed under Proposition 1 can be resolved at the necessity stage, i.e. at stage (ii) of the three-part test.

Proposition 7: Where Article 8 privacy rights are in issue, the question posed under Proposition 1 can only be resolved after considering the excessive interference question posted by stage (iii).

The UT also added this proposition 8, confirming that the oft-cited cases on condition 6(1) were consistent with each other (proposition 8: The Supreme Court in South Lanarkshire did not purport to suggest a test which is any different to that adopted by the Information Tribunal in Corporate Officer).

Those who are called upon to apply condition 6(1) will no doubt take helpful practical guidance from that checklist of propositions.

Robin Hopkins @hopkinsrobin

Facebook, FOI and children

The Upper Tribunal has got its teeth into personal data disputes on a number of occasions in recent months – Edem was followed by Farrand, and now Surrey Heath Borough Council v IC and Morley [2014] UKUT 0330 (AAC): Morley UT decision. Panopticon reported on the first-instance Morley decision in 2012. In brief: Mr Morley asked for information about members of the local authority’s Youth Council who had provided input into a planning application. The local authority withheld the names of the Youth Councillors (who were minors) under s. 40(2) of FOAI (personal data). In a majority decision, the First-Tier Tribunal ordered that some of those names be disclosed, principally on the grounds that it seemed that they appeared on the Youth Council’s (closed) Facebook page.

The local authority and the ICO challenged that decision. The Upper Tribunal (Judge Jacobs) has agreed with them. He found the dissenting opinion of the First-Tier Tribunal member to have been the more sophisticated (as opposed to the overly generalised analysis of the majority) and ultimately correct. The Youth Councillors’ names were correctly withheld.

In his analysis of the First Data Protection Principle, Judge Jacobs was not much bothered by whether fairness or condition 6(1) (the relevant Schedule 2 condition) should be considered first: “the latter is but a specific instance of the former”.

Judge Jacobs found that there was no sufficient interest in the disclosure of the names of the Youth Councillors. He also rejected the argument that, by putting their names on the relevant Facebook page, the data subjects had implicitly consented to public disclosure of their identities in response to such a FOIA request.

Judge Jacobs stopped short, however, of finding that the personal data of minors should never be disclosed under FOIA, i.e. that the (privacy) interests of children would always take precedence over transparency. Maturity and autonomy matter more than mere age in this context, and sometimes (as here) minors are afforded substantial scope to make their own decisions.

Morley is an important case on the intersection between children’s personal data and transparency, particularly in the social media context, but – as Judge Jacobs himself observed – “it is by no means the last word on the subject”.

There were 11KBW appearances by Joseph Barrett (for the local authority) and Heather Emmerson (for the ICO).

Robin Hopkins @hopkinsrobin

Court of Appeal gives judgment on credit reference agencies and accuracy of personal data

The fourth data protection principle requires that “personal data shall be accurate and, where necessary, kept up to date”. It does not, however “impose an absolute and unqualified obligation on [data controllers] to ensure the entire accuracy of the data they maintain. Questions of reasonableness arise in the application of the fourth principle, as paragraph 7 of Part II of Schedule I spells out.” This statement by Davis LJ (at para. 80) encapsulates the case of Smeaton v Equifax plc [2013] EWCA Civ 108, in which the Court of Appeal handed down judgment today.

Equifax is a well-known credit reference agency. Between 22 May 2002 and 17 July 2006 Equifax included in its credit file concerning the Respondent, Mr Smeaton, an entry to the effect that he was subject to a bankruptcy order. This was incorrect – that order had been rescinded in 2002.

He was subsequently declined a business loan, with serious detrimental consequences for that business. He brought a claim against Equifax for those business losses and “other losses and distress consequent upon his descent into a chaotic lifestyle”.

Initially, his cause of action was defamation. By the time of trial in 2011, it had become (a) a claim under s. 13 of the Data Protection Act 1998, and (b) a parallel common law tort claim.

The judge, HHJ Thornton QC (having substantially amended the first draft of his judgment following submissions at handing down), found that Equifax had breached the fourth data protection principle (as well as the first and the fifth, though he had heard no argument on these points), that it owed Mr Smeaton a parallel duty in tort and that he had suffered losses as a result of these breaches.

The Court of Appeal disagreed in strong terms, Tomlinson LJ saying this at para. 11 about the judge’s approach and conclusions – particularly on causation:

“In retrospect it is I think unfortunate that the judge attempted to resolve the causation issue in principle, divorced from the question what loss could actually be shown to have been caused by the asserted breaches of duty. I have little doubt that Mr Smeaton believes in all sincerity that a good number of the vicissitudes that have befallen him can be laid at the door of Equifax, but a close examination of the relationship between the losses alleged and the breaches of duty found by the judge would perhaps have introduced something in the way of a reality check. Had the judge looked at both issues together he might I think have had a better opportunity to assess the proposition in the round. As it is, the judge’s conclusion that the breaches of duty which he identified caused Mr Smeaton loss in that they prevented Ability Records from obtaining a loan in and after mid-2006 is in my view not just surprising but seriously aberrant. It is without any reliable foundation and completely unsupported, indeed contradicted, by the only evidence on which the judge could properly rely.”

Turning from the facts of the case and the question of causation to the approach to the fourth data protection principle in general, Tomlinson LJ said this at para. 44:

“The judge was also in my view wrong to regard the mere fact that the data had become inaccurate and remained accessible in its inaccurate form for a number of years as amounting to a “clearly established breach of the fourth principle” – judgment paragraph 106. Paragraph 7 of Part II provides that the fourth principle is not, in circumstances where the data accurately records [erroneous] information obtained by the data controller from the data subject or a third party, to be regarded as contravened if the data controller has, putting it broadly, taken reasonable steps to ensure the accuracy of the data. A conclusion as to contravention cannot in such a case be reached without first considering whether reasonable steps have been taken. As the facts of this case show, that may not always be a straightforward enquiry. Perhaps often it will and it may not therefore usually be difficult to establish a contravention. Once it is concluded that reasonable steps were not taken in this regard, a consumer may seek compensation under s.13. It will then be a defence for the data controller to show that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned. It may be that that enquiry is in substance no different from that required under paragraph 7 of Part II in the limited class of case to which that paragraph refers. However it should be noted that in cases not covered by paragraph 7 a contravention may be established without consideration of the reasonableness of the steps taken by the data controller. In such a case reasonableness would arise only if a defence were mounted under s.13(3).”

Tomlinson LJ then summarised the law and relevant legal guidance on credit reference agencies and bankruptcy proceedings. At para. 59, he concluded that:

“The judge’s approach begins with the observation, at paragraph 95 of the judgment, that erroneous or out of date data which remains on a consumer’s credit file can be particularly damaging. Of course this is true, and nothing I say in this judgment is intended to undermine the importance of the fourth data protection principle. But before deciding what is the ambit of the duty cast upon CRAs to ensure the accuracy of their data, it is necessary to put this important principle into context and to maintain a sense of proportion. In the context of lending, arrangements have been put in place to ensure that an applicant for credit should not suffer permanent damage as a result of inaccurate information appearing on his file. As recorded above these safeguards are set out in the Guide to Credit Scoring and are further explained in at least two other published documents…. The judge made no reference to these arrangements which are in my view relevant to the question how onerous a duty should be imposed upon a CRA to ensure that its data is accurate. I agree with Mr Handyside that in most cases of applications for credit failed on account of incorrect data the harm likely to be suffered is temporary inconvenience. It is possible that the judge overlooked this as a result of his flawed conclusion that it was inaccurate data, or more precisely the alleged breach of duty which gave rise thereto, which prevented Mr Smeaton / Ability Records from obtaining credit in and after July 2006.”

He continued at para 62:

“The judge ought in my view to have taken into account that these various publications demonstrate that both the methods by which CRAs collected and updated their data and the shortcomings in those methods were well-known to and understood by the Information Commissioner and the Insolvency Service.”

Tomlinson LJ also concluded (at paras. 67-68) that part of the judge’s conclusions on DPA breach “amounts to a conclusion that Equifax was in breach of the duty required of it under the DPA because it failed to attempt to persuade the Secretary of State and the Insolvency Service to initiate modifications to the legislative and regulatory framework and in particular failed to secure the reversal of the legislative choice made in 1986 no longer to require the automatic advertisement of annulments and rescissions. I do not consider that this is a realistic conclusion. Self-evidently it is not realistic to conclude that an exercise of this sort was either necessary or feasible in relation to a tiny number of cases where the consequences of inaccuracy could not normally be expected to be anything other than temporary inconvenience. A duty the content of which is to lobby for a change in the law must be very uncertain in its ambit and extent and in my view is implausible.”

Finally, not only had the judge erred in his approach to causation and the fourth data protection principle, he was also wrong to find that there was a parallel duty in common law: the House of Lords said in Customs and Excise Commissioners v Barclays Bank [2007] 181 that statutory duties cannot generate parallel common law ones, and on the raditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty, the answer here would also be ‘no’.

The judgment will be welcomed not only by credit reference agencies, but by all those data controllers whose particular circumstances mean that data inaccuracy is, best efforts notwithstanding, an occupational hazard.

For another blog post on this judgment, see Information Rights and Wrongs, where Jon Baines was quick off the mark.

Robin Hopkins


The Information Commissioner is currently consulting on a draft Data Sharing Code of Practice. Subject to consultation and obtaining the Secretary of State’s approval, this will be a statutory code of practice issued under sections 52A and 52D of the Data Protection Act 1998 which can be used as evidence in any legal proceedings. The draft code is relatively short  (less than 40 pages) and does not include as much practical detail as perhaps might have been expected. It is available on the Information Commissioner’s website (  and the consultation period closes on 5 January 2011.