In March 2010, we posted on a New York Times article which explored how Google’s quest to increase access to information via the internet appeared to be clashing with European privacy laws. The article followed in the wake of the prosecution in Italy of Google executives for violating Italian privacy laws after Google allowed a user to post a video showing an autistic boy being bullied. More recently, further controversies over Google’s record on privacy rights have emerged. First, privacy regulators from a number of different countries, including our own Information Commissioner, Christopher Graham, wrote a joint letter to Google’s chief executive and challenging him to improve protections for users, thereby highlighting concerns that Google is not doing enough to protect the privacy of users – see further this article in the Guardian dated 20 April 2010. Second, last week reports emerged that German regulators had renewed their criticism of Google’s Streetview when it emerged that Google was using the Streetview system to archive information about the location of household wireless networks – see this article in the New York Times dated 29 April 2010. What these developments suggest is that the clash between European social values and the expansion of Google’s techno-commercial empire is likely to continue for some time to come.
Tag: privacy
PRIVACY BY DESIGN – NEW OPINION FROM THE EUROPEAN DATA PROTECTION SUPERVISOR
The European Data Protection Supervisor last week adopted a new opinion examining the question of how effectively to safeguard data protection and privacy rights in the fast-moving world of information technology. The central thrust of the opinion is that new information technologies themselves need to be developed in a way which protects personal data and privacy, rather than simply being subject to possibly ineffective control policies once they have been developed. This so called ‘privacy by design’ approach to developing new technologies is intended to build public trust in the information society.
DISCLOSING INFORMATION FOR CHILD PROTECTION PURPOSES – NEW ADMINISTRATIVE COURT JUDGMENT
The question of whether and to what extent local authorities can or should share information about individuals thought to pose a risk to children is often a very difficult one to answer in practice. Failure to disclose the information may expose the authority to claims that it has not acted in accordance with its duties to safeguard children’s interests. On the other hand, sharing the information may expose the authority to claims that it has acted in excess of its powers and has otherwise breached the individual’s right to privacy under Article 8 ECHR. In the recent case of H & L v X City Council and Y City Council [2010] EWHC 466 (Admin), the Administrative Court considered this question in a case involving the disclosure of information by a local authority about a severely disabled man (H) who been convicted of indecent assault on a child. In this case, the council had made a variety of disclosures to organisations with which H was involved. It had also adopted a policy of considering on a case by case basis whether it should make disclosure of information relating to H to organisations with which he became involved in the future. In addition, the local authority had a policy of disclosing information to H’s personal care assistants, purportedly to protect any children those carers may bring into contact with H.
In a judgment which recognised the very strong imperative in favour of protecting children’s interests, Judge Langan QC held that the policies of disclosure to organisations with which H was involved constituted a proportionate interference with H’s Article 8 right to privacy and was otherwise lawful. In reaching this conclusion, the judge took into account the fact that the disclosures were fairly guarded in nature; were not made in lurid terms and did not go beyond what was required for the purpose of making a measured communication. The judge similarly held that the policy of notifying other organisations with which H came into contact in future on a case-by-case basis was a reasonable, proportionate and otherwise lawful policy. However, the judge took issue with the authority’s policy of notifying H’s care assistants. He held that this was a disproportionate measure, particularly in view of the facts that: two of the three long-term carers had no children; there was a ‘no children at work’ provision in the relevant employment contracts and, further, the terms of the disclosures would raise suspicions in the minds of the carers which was more grave than H’s past conduct justified. In reaching his conclusions on the various policies adopted by the council, the judge plainly had in mind the recent important Supreme Court judgment in R(L) v Commissioner of Police of the Metropolis [2009] 3 WLR 1056, where the Supreme Court held that it was no longer right to assume that priority must be given to the need to protect the vulnerable over the right to respect for the private life of the individual. What this case perfectly illustrates is the highly fact-sensitive approach which needs to be adopted in any case where the local authority is contemplating sharing information for child protection purposes. Tim Pitt-Payne appeared on behalf of the local authority
Protecting the Anonymity of Parties – EAT Supplements Its Own Rules of Procedure
On 5 March 2010, the Employment Appeal Tribunal (President Underhill presiding) gave a judgment on the question of whether it had powers to protect the anonymity of a party in a case involving allegations of sexual offences – A v B (UKEAT/0206/09/SM). The background to the judgment was that a claimant had been granted permanent anonymity by the Employment Tribunal under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.49. The anonymity order had been made in circumstances where the claimant, who was claiming unfair dismissal, had been dismissed in response to a disclosure by police that he had been involved in paedophile activity in Cambodia and was believed to represent a risk to children. The Claimant had in fact been acquitted in the Cambodian courts and there was no reason to believe he faced prosecution in the UK. On appeal against the tribunal’s judgment to the EAT, the question arose as to whether the EAT had power to maintain the anonymisation when dealing with the appeal. This was a difficult question to resolve because, on their face, the EAT Rules 1993 read together with the Employment Tribunals Act 1996 did not provide for such a power. In a judgment which reflects the overriding importance of human rights considerations, the EAT held that it did have such a power. In reaching this conclusion, the EAT took into account: (a) that the loss of the claimant’s anonymity would involve a serious breach of his convention rights, particularly the Article 8 right to privacy; (b) that, on the facts of the case, the need to protect the claimant’s privacy under Article 8 outweighed the imperative towards freedom of expression embodied in Article 10 of the Convention; and (c) that, in the circumstances, s. 6 of the Human Rights Act 1998 required the EAT to interpret its powers so as to include a power to protect the claimant’s anonymity.
In the course of its judgment, the EAT considered the very recent judgment of the Supreme Court in HM Treasury v Ahmed [2010] UKSC 1; [2010] 2 WLR 325. In that case, the Supreme Court held that the old common law rule that a party forfeited his right to privacy if he chose to bring proceedings (subject to certain limited statutory exceptions) required modification in the light of the Convention. It concluded that, in a case where full publication of the proceedings would have an impact on the Article 8 rights of a party, the court will have to conduct a balancing exercise between that right and the right to freedom of expression under Article 10 (see per Lord Roger, para. 43). This is precisely the balance which the EAT sought to strike in the Av B case.
FSA’S POWERS TO REQUIRE PRODUCTION OF DOCUMENTS – NEW COURT OF APPEAL JUDGMENT
The Court of Appeal has today handed down an important decision on the nature and scope of the FSA’s powers to require production of documents under the Financial Services and Markets Act 2000 (FSMA), Financial Services Authority & Ors v Amro International & Ors [2010] EWCA Civ 123. The case involved a request made to the FSA by the United States Securities and Exchange Commission. The Commission had instituted proceedings in the United States alleging fraudulent and manipulative trading in the shares of a US company. Pursuant to a multilateral memorandum of understanding concerning the exchange of information (the Memorandum), the Commission sent to the FSA a letter requesting the FSA’s assistance in obtaining the production of documents from a London-based accounting firm (G) which acted for two companies implicated in the US litigation. In response to the request, the FSA appointed investigators under the FSMA and the investigators issued notices to G pursuant to s. 171 and/or s. 172 FSMA to produce the documents and information described in the Commission’s request. Overturning the judgment of the High Court, the Court of Appeal held that the FSA’s actions in appointing investigators and issuing the notices were lawful under the FSMA. In the course of its judgment, the Court of Appeal rejected arguments advanced by the respondents to the effect that: (a) the FSA had to verify the information provided by the Commission and the Commission’s need for documents prior to taking action under the FSMA; (b) the FSA’s actions were at odds with the terms of the Memorandum and (c) it had to be established that production of the documents was ‘necessary or expedient’ in all the circumstances. It held that: there was nothing in the statute which required the FSA to second-guess a foreign regulator as to its own laws and procedures or as to the genuineness or validity of its request for assistance; the question of whether to provide the requested assistance was to be determined under the FSMA and not the Memorandum; and the test to be applied in respect of the production of documents was that contained in s. 171(2), namely whether the investigator reasonably considered production to be relevant to the purposes of the investigation; the test contained in s. 171(2) was a relatively low hurdle which had been cleared on the facts of the case. The Court of Appeal recognized that the FSA’s actions might engage the Article 8 right to privacy and, hence, considerations of proportionality came into play. However, it concluded that the actions taken by the FSA were proportionate in all the circumstances.
LABOUR PARTY IN THE DOG-HOUSE OVER AUTOMATED CALLS
The Commissioner has this week issued an enforcement notice to the Labour Party in response to its act of making unsolicited automated marketing calls without consent to almost half a million people. The calls were made in June 2009 and were designed to encourage people to vote in the European elections. The ICO held that, notwithstanding their inherently political nature, the actions taken by the Labour Party amounted to unlawful ‘direct marketing’ for the purposes of the Privacy and Electronic Communications Regulations 2003. The enforcement notice requires the Labour Party to desist from making further automated calls without the recipients’ consent. Breach of the notice will amount to a criminal offence and could lead to prosecution. This is not the first time that a political party has received an enforcement notice in response to making automated calls. Similar notices have previously been served on the Conservatives, the Scottish National Party and the Liberal Democrats. See further the Commissioner’s press release on this issue.