The Independent Commission on FOI – Update

November 23rd, 2015 by Christopher Knight

Did we all make submissions to the Independent Commission on Freedom of Information last week? It sounds as though many of you did. Lord Burns, Chair of the Commission, has announced that they received some 30,000 responses to their consultation. Not surprisingly, reading those and thinking about them is something the Commission does not now feel it can do before Christmas. Indeed, Lord Burns has announced he will call oral evidence from some respondents on 20 and 25 January 2016, and the Commission will write their report after that. Hopefully this is a sign that the Commission wants its work to be evidence-based. We wait to see who the lucky individuals are who have been invited to the oral evidence party.

The announcement is here.

Christopher Knight

Expectations of privacy abroad

November 23rd, 2015 by Paul Greatorex

As all celebrities know, to get the High Court to stop paparazzi pictures of you from being published, the first thing you have to do is show you had a reasonable expectation of privacy.  But what if you were snapped outside of the jurisdiction and whilst English law principles suggest that you did have such an expectation, the local law where the photographs were taken says you do not?

The answer given by the Court of Appeal in Weller v Associated Newspapers [2015] EWCA Civ 1176 is that the local law is not determinative and the weight to be given to it is a matter for the judge.

Readers of Panopticon may recall a similar issue arose in Douglas v Hello [2005] EWCA Civ 595 where the Court of Appeal said that the provisions of New York law, which had entitled Michael Douglas and Catherine Zeta-Jones to arrange their wedding there in private, had no direct application since the question of whether the information was private was one of English law.  However, it had also expressed the view that the reverse was not necessarily true, saying that if New York law had permitted any member of the public to be present at a hotel wedding and to take and publish photographs of that wedding, then the photographs “would have been unlikely to have satisfied the test of privacy”.

Ten years later, the decision in Weller suggests the position is not necessarily that simple.  The case concerned a claim by the children of Paul Weller for an injunction and damages for misuse of private information and/or breach of the Data Protection Act 1998, arising out of the publication by the Mail Online of unpixellated photographs of them taken on a street and in a cafe in California.

The Court of Appeal agreed with the judge below that, applying ordinary principles of English law, the children did have a reasonable expectation of privacy and the fact (found by the judge and unchallenged on appeal) that that under Californian law there was no such expectation, did not mean the claim must fail.  The Court of Appeal said the position under local law was not determinative and the weight to give to it had been for the judge to determine: see [67-71].

On the facts it was held that there was no error by the judge in giving it the very little weight to it that he had: the connection of the two youngest children (aged 10 months) with California was slight, and certainly so when compared with their parents’ connection with England where the photographs were unlawfully published, and it had heard “very little, if any, argument” about the impact of the fact that the eldest child was living in California at the time.  Challenging matters of weight on appeal is always very difficult although this brief reasoning at [70] suggests a particular reluctance to interfere with the decision below.

There are three other points of interest in the judgment.

The first is the summary provided by the Court of Appeal at [29-30] of the case law governing children and privacy:

  • a child does not have a separate right to privacy merely by virtue of being a child;
  • the broad approach to reasonable expectation of privacy is the same for children and adults but as there are several considerations relevant to children but not to adults, a child may in a particular case have such an expectation where an adult does not;
  • in the case of children (as in the case of adults) all the circumstances of the case should be taken into account in deciding whether there is a reasonable expectation of privacy, which should include those listed in Murray v MGN [2008] EWCA Civ 446 at [36] (attributes of the claimant, nature of activity in claimant was engaged, place at which it was happening, nature and purpose of intrusion, absence of consent and whether known or inferred, effect on the claimant, and circumstances/purposes surrounding information coming into hands of publisher).

The second is that at [81-88] the Court of Appeal upheld the grant of an injunction restraining further publication of the photographs even though the judge had originally found there was no evidence that this would happen, simply on the basis that the Mail subsequently refused to give an undertaking to this effect.  This was said to satisfy the requirement that there be reason to apprehend further publication and complaints about the adverse consequences for freedom of expression were dismissed, although again the terms of the judgment suggest a real reluctance to interfere with the judge’s discretion.

The third is to note that the judgment does not record any appeal against the awards of damages (£5,000 for the eldest child and £2,500 for each of the twins).  Since the claim under the Data Protection Act 1998 was said to stand or fall with the claim for misuse of private information, it remains to be seen whether these awards are used as guidance in nascent case law concerning damages in “pure” DPA claims.

Paul Greatorex


Legislative process

November 18th, 2015 by jamesgoudie

As is well known, Section 35 of FoIA creates a class-based exemption from disclosure designed to protect the effective formulation of Government policy; and Section 36 creates an exemption related to effective conduct of public affairs.  The scope of the Section 35 exemption is that information may be exempt if it relates to the formulation or development of Government policy.  However, the wide scope of the exemption is narrowed by the provision that once a decision as to Government policy has been taken statistical information used to provide an informed background to the decision is no longer exempt.  Moreover, in determining whether the public interest in maintaining the exemption outweighs the public interest in its disclosure, regard must be had to the particular public interest in the disclosure of factual information that has been used, or is intended to be used, to provide an informed background to decision making.

FoIA of course is domestic legislation.  What is the position if the legislative proposal is at EU level and the information is held, not by a UK Government Department or the Welsh or Northern Ireland Assembly, but by the EU Commission?  That was the issue that arose before the EU General Court in Joined Cases T-424/14 and T-425/14, Client Earth v European Commission, in which Judgment was given on 13 November 2015.

That was an environmental case.  It was brought by Client Earth, a non-profit organisation whose aim is the protection of the environment.  The case was concerned with Impact Assessments.  There are of course specific rules at EU and UK level relating to disclosure of environmental information.  Client Earth sought the annulment of two Commission decisions refusing, whilst its decision-making processes were still ongoing, to grant access to Impact Assessment.  The refusals were upheld by the Court.  The access was not sought pursuant to the specific rules on environmental information.  The position was governed rather by EU Regulation1049/2001.  The Regulation provides that decisions by EU Institutions such as the Commission should be taken as openly as possible.  The fullest possible effect should be given to the right of public access to documents of the Institutions.

However, there are exemptions, to be interpreted strictly, under the Regulation.  These include where it can and should be inferred that disclosure of the document would seriously undermine the Institution’s decision-making process, unless there is an overriding public interest in disclosure.  This exemption was held to apply.

The basis of the Court’s decision was that, in the context of the preparation and development of policy proposals, including proposals for legislative acts, at an early and sensitive stage, the Commission may rely on grounds of a general nature relating to the need to preserve its “thinking space”, room for manoeuvre, and independence, the need to preserve the atmosphere of trust during discussions, and the risk of external pressures liable to affect the conduct of the ongoing discussions and negotiations. The Commission was therefore, in the Court’s judgment, entitled to presume, without carrying out a specific and individual examination of each of the documents connected with an Impact Assessment, that the disclosure of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal, for so long as it has not made a decision to adopt or abandon the proposal.

James Goudie QC

Tweet Tweet? #silencingFOIontwitter

November 17th, 2015 by Christopher Knight

Is a request for information made in a tweet a valid request within the meaning of sections 1 and 8 FOIA? Not in Ghafoor v Information Commissioner (EA/2015/0140). The FTT held that section 8(1) requires the request for information to be made using the “real name” of the person making it, and that the provision of an address for correspondence must one which is “suitable for correspondence” between the requestor and the public authority about the request. In Mr Ghafoor’s case, his Twitter handle does not contain his real name (it is the well-known @FOIkid account, tweeting about all matters information rights), and the public authority should not, in the view of the FTT, be obliged to look anywhere else for it (even in the Twitter profile itself below the handle). Moreover, a 140 character tweet is not a suitable method of correspondence concerning the request. The FTT did agree that if a request has been validly made through one address, section 11 obliges the public authority to respond to that address and not insist on doing so via some other sort of address (posting a letter when the request was in an email, for example).

The case is fact-specific, and does not necessarily preclude a request being made from a Twitter account with a ‘real name’ in the handle, at least where the information can be properly responded to in tweet form. However, the emphasis on provision of the requestor’s real name – to enable the proper consideration of the use of sections 12 and 14 the FTT held – is problematic. What if an email request is made from an email address which does not clearly show a name, or it is a name but the public authority has no way of checking whether is really a Mr David Smith or is in fact called David Jones? What proof of the real name is required? What if a request is made from a company which does not provide its full registered company name? The judgment might suggest public authorities can too readily answer that the request is invalid, and the reading in of “real” into section 8(1)(b) may be a word too far. There is an argument that the FTT has switched the focus too much onto the requestor rather than the request. Whether Twitter is a suitable method of communication may also be open to argument in some requests, although it plainly would be difficult to properly respond in others and there is no legal obligation on the public authority to publish its answer and link to it (not least because that would reveal the ‘real name’ of the requestor). It will be interesting to see if the issue is re-litigated in other circumstances.

In the meantime, it appears the FTT is fighting back against the social media age. No #ff for the First-tier Tribunal.

Christopher Knight

GDPR & the media – words of warning

November 12th, 2015 by Anya Proops

Since the CJEU gave judgment in Google Spain, there has been much discussion on the conference  circuit about whether the judgment rides rough shod over free speech rights. Certainly the lack of any procedural protections for the media within the right to be forgotten regime has been the subject of much heated debate. For those of you wishing to understand how Article 10 rights are likely to fare under the new General Data Protection Regulation, you would do well to start with this excellent article by Daphne Keller, Director for Intermediary Liability at Stanford Law’s Center for Internet and Society (and notably former Assistant General Counsel to Google).

As Daphne makes clear, the GDPR does not offer the media much by way of solace. Quite the contrary, what we see with the new Regulation is a continuing failure on the part of European legislators to accommodate free speech rights within the data protection regime in a structured and systematic manner. To a large extent this lack of protection for Article 10 rights is a product of the fact that historically data protection and the media have rarely crossed swords. Certainly within our own jurisdiction, it is only over the last 18 months or so that an awareness of the potentially very substantial areas of tension have begun to surface (see further not least the discussion of the Steinmetz case on this blog). However, the reality is that the European quest to place data privacy rights centre-stage, in the online world and beyond, now  poses serious challenges for the media. This is something which will hopefully start to register at least with those EU regulators who will in due course be charged with applying the GDPR.

Anya Proops

Navigating the Harbours: The Commission Awakens

November 7th, 2015 by Christopher Knight

Like everyone else who operates in the field, this blog may have touched once or twice on the issues arising out of Schrems. Both Robin (here) and Tim (here) have provided some summaries of the sorts of alternatives data controllers will need to think about, and the guidance issued by the Article 29 Working Party as a result. But what, everyone has been asking, does the European Commission have to say about all this?

Happily, the heavy lids of ignorance may be lifted as the Commission has awoken. (Whether it more closely resembles the Force or a Kraken is perhaps a matter of personal preference.) It has produced a lengthy document which is actually both helpful and readily understandable. Not adding umpteen recitals probably helps. It draws together a lot of the practical issues and much of the existing guidance from the Article 29 WP already discussed for a sort of cheat-sheet document to help you navigate the ongoing choppy waters. You can find and download it here.

By way of precis, it informs us that the Commission has now “intensified” discussions with the US about a new Safe Harbour agreement, and that it hopes to have an outcome in three months. That would indeed require a considerable intensification, but there is nothing like ongoing illegality to concentrate the mind.

In the meantime, the Commission reminds us that Binding Corporate Rules are an option only for internal group company data transfers (something often overlooked), summarises what the Article 29 WP have suggested need to be included and, rather optimistically, noted that the process has been facilitated and sped up by inter-Data Protection Authority liaison. Unfortunately, the reality is that in the UK, the ICO has always warned that BCR approval can take 12 months, and many readers will have had the experience of it taking considerably longer. The ICO has a lot of balls to juggle and not many hands, and there has been a deafening silence from the multinationals who want BCRs of suggestions of paying for the resources to get them more quickly.

Outside of the BCR context, the Commission stresses its own approved contractual solution between controllers: the Standard Contract Clauses. There are currently four approved sets: two as between controllers and two as between controller and processor. They include obligations as regards security measures, information to the data subject in case of transfer of sensitive data, notification to the data exporter of access requests by the third countries’ law enforcement authorities or of any accidental or unauthorised access, and the rights of data subjects to the access, rectification and erasure of their personal data, as well as rules on compensation for the data subject in case of damage arising from a breach by either party to the SCCs. The model clauses also require EU data subjects to have the possibility to invoke before a DPA and/or a court of the Member State in which the data exporter is established the rights they derive from the contractual clauses as a third party beneficiary. What the Commission adds is to point out that Commission decisions are binding in Member States, and SCCs are a result of Commission decisions. The presumption is, therefore, that the SCCs provide adequate protection (although they can be challenged in a court and referred to the CJEU if necessary). DPAs will want to check any boutique amendments to the SCCs for compliance.

The Commission points out that under the new Regulation the proposal is that neither SCCs nor BCRs will require further authorisation by a national authority.

The third option is, of course, the derogations in Article 26(1). The Commission goes through each, highlighting the existing guidance on them and attempting the balance of making them look like workable solutions whilst stressing the need to construe them strictly. It may well be that much of the routine transfer businesses have used – because of banking transfers or international travel – will be covered by the contractual derogations providing, of course, that the transfer is necessary. The Article 29 Working Party considers that there has to be a “close and substantial connection”, a “direct and objective link” between the data subject and the purposes of the contract or the pre-contractual measure as an aspect of the necessity test. The derogation cannot be applied to transfers of additional information not necessary for the purpose of the transfer, or transfers for a purpose other than the performance of the contract (for example, follow-up marketing). If consent is relied upon it must be “unambiguous”, and so cannot be implied.

What the Commission does not really discuss is the ability of controllers to carry out their own adequacy assessment and rely on that. It is theoretically possible, but inevitably it is a risky route to adopt in this new-found atmosphere of data protection litigation.

The Commission also accepts that all of its other adequacy decisions are open to challenge in courts, but does not consider any to be at immediate risk.

By way of update on global reactions, readers may be aware that the German DPA has taken the most restrictive post-Schrems line; it has declined to approve any new BCRs or amended SCCs for the time being, although it has not said it will invalidate existing agreements. It has also taken a very restrictive line on consent. In Ireland, the remittal by the CJEU to the Irish Courts has led to the start of the domestic process of investigation into adequacy, but those proceedings are at a very early stage still. The passing of the Judicial Redress Bill by the US House of Representatives is being seen as one step closer to the possibility of remedying one hole in the Safe Harbour scheme, which was the difficulty of EU citizens vindicating their rights in the US. Under the new Bill they could, in theory, be designated so that vindication was more plausible, but that is a long way from resolving all of the issues. There are also likely to be implications for the TTIP negotiations, although the sense is that data protection will be carved out of TTIP altogether and left to the new Regulation. However, it is also of interest that the impact has been wider than just the EU-US relationship. Israel – currently subject to an adequacy decision itself – has revoked its own decision giving prior authorisation for the transfer of data from Israel to US companies signed-up to the Safe Harbor, doubtless to ensure that the EU-Israel adequacy decision is not undermined by proxy.

None of this is likely to be the last word, or post, on the subject. January 2016, by which time a solution has to have been found or the DPAs will start enforcing, seems awfully close…

Christopher Knight

Multi-billion dollar actions for inaccurate personal data?

November 4th, 2015 by Robin Hopkins

Data protection has developed a curious habit of churning up heroic (or anti-heroic, depending on how you view it) figures who take on global behemoths to surprising effect. Maybe I am being too dramatic, but think of Mario Costeja González, the complainant at the heart of the Google Spain ‘right to be forgotten’ case, and Max Schrems, whose litigation has thrown Safe Harbor and transatlantic data transfers into turmoil.

If we maintain a transatlantic gaze, another such figure comes into view. On Monday of this week, the Supreme Court of the United States heard argument in the case of Spokeo Inc v Thomas Robins. Mr Robins – the potential David in this important new David v Goliath episode – is at the forefront of litigation against the ‘people search engine’ Spokeo (see Anya’s earlier post here).

The profile Spokeo compiled about him said he was a graduate, a professional in his 50s and a married man with children. Hardly defamatory stuff, except that none of it was correct. He did not establish that these errors caused him any financial loss, but he seeks damages for the publication of factually incorrect information about his life.

So what, you say? Well, consider the Amicus Briefs put before SCOTUS by Ebay, Facebook, Google and Yahoo. They all say that this is a very big deal. They point out that, as major global tech innovators, they are exposed to numerous federal and state laws which contain statutory damages provisions for private causes of actions. If standing is granted for “no injury” lawsuits “plaintiffs may pursue suits against amici even where they are not actually harmed by an alleged statutory violation, and in certain circumstances, seek class action damages that could run into the billions of dollars”.

The issues in Robins (should you be compensated for mere breaches or for ‘digital injuries’?) resonate with live issues before the courts in the UK: can you be compensated under the Data Protection Act 1998 for mere distress (see Vidal-Hall v Google, en route to the Supreme Court)? How should one compensate for privacy violations (see Gulati, on which the Court of Appeal’s judgment is awaited)?
Regardless of whether Mr Robins emerges as a Goliath-slayer, his case adds to the law’s increasingly intense scrutiny of global tech companies whose stock in trade is personal data.

Robin Hopkins @hopkinsrobin

FOI and Article 10: life after Kennedy (and Kenedi)

November 4th, 2015 by Robin Hopkins

The right to freedom of expression under Article 10(1) of the European Convention on Human Rights includes “freedom… to receive and impart information and ideas without interference by public authority”. Does that mean that there is a human right to freedom of information?

The question has haunted the courtrooms of the UK and other EU member states in recent years. In England and Wales, the last domestic word has been Kennedy v Charity Commission [2014] UKSC 20. The answer in Kennedy was ‘no’: Article 10 ECHR does not impose a positive, free-standing duty on public authorities to disclose information upon request.

That is not, however, the final word. Kennedy is to be heard by the European Court of Human Rights in Strasbourg – but the case has been stayed. This is because the Grand Chamber accepted another case raising essentially the same question.

The case is Magyar Helsinki Bizottság v Hungary (18030/11). The applicant, a human rights NGO, asked police forces to disclose information about ‘public defenders’, i.e. defence counsel appointed in criminal proceedings. The police forces refused, and the Hungarian court refused to order disclosure. The applicant complains that the refusal interferes with its rights under Article 10.

The case Bizottság was heard by the Grand Chamber today.

The UK government was an intervener. It urged the Court to conclude that Article 10 ECHR does not create a right to receive information from a public authority, in accordance with a line of authority (Leander v Sweden (1987) 9 EHRR 433, Gaskin v United Kingdom (1990) 12 EHRR 36, Guerra v Italy (1998) 26 EHRR 357 and Roche v United Kingdom (2006) 42 EHRR 30).

The Hungarian government’s position was to the same effect. It contended that concessions made in cases supporting the link between Article 10 and freedom of information (such as Társaság a Szabadsagjogokert v Hungary (2011) 53 EHRR 3 and Kenedi v Hungary 27 BHRC 335) were fact-specific.

Statutory rights to freedom of information in England and Wales are currently under threat of curtailment. Kennedy introduced (or confirmed) that, at least in certain circumstances, freedom of information also has a common law foundation. The Grand Chamber’s judgment in Bizottság will reveal whether, in addition to its statutory and common law pillars, freedom of information has a human rights basis as well.

Jason Coppel QC, Karen Steyn QC and Christopher Knight of 11KBW represented intervening parties in Bizottság.

Robin Hopkins @hopkinsrobin

11KBW ranked No. 1 in Data Protection and Information Law in Chambers and Partners and Legal 500 for another year

November 2nd, 2015 by Panopticon Blog

We are thrilled to be, once again, the only chambers ranked in the top tier in the leading legal directories for data protection and information law.   With 5 silks and 9 juniors listed in Chambers, and 5 silks and 8 juniors listed in Legal 500 as leaders in this field, we are recognised as the pre-eminent set having “an impressive roster of highly accomplished counsel at all levels of seniority” acting for both public and private clients and with a breadth and depth of experience second-to-none.  ​Our information law blog, Panopticon, received special mention in Chambers and Partners as impressing clients.   We look forward to another successful year and are grateful to our clients for their continuing support.

11KBW remains ‘the set others aspire to beat in data protection work’   – Legal 500,  2015

Crime and Justice and Data Protection. Oh My.

October 29th, 2015 by Christopher Knight

This is not a lengthy analytical post; it is by way of quick update on the much overlooked younger sibling of the proposed General Data Protection Regulation: the Data Protection Directive for the police and criminal justice sector. Most practitioners are understandably focussing on the Regulation: that is the instrument which will affect most of us most of the time. But the EU is proposing to harmonise the rules across sectors and, at the same, implement a new Directive applicable to the police and criminal justice sectors. The existing Directive does not, of course, apply to that arena by virtue of article 3(2) (although the DPA 1998 is unlimited in its scope, so the point has rarely been of much relevance domestically).

A couple of weeks ago the Commission proudly announced that the Directive was full steam ahead following agreement in the Council, and that the drafting was moving into trilogue (dread term). The EDPS has now issued Opinion 6/2015, which is not quite so enthusiastic and sets out a number of areas that it believes should be taken into account, not least ensuring compliance with the CJEU’s evident dislike of blanket surveillance in Schrems (Panopticon passim) and the Charter rights of data subjects. It also stresses the need for there to be ‘joined up regulation’ between the Directive and the new Regulation to ensure a coherent and consistent system of data protection across the EU and across all fields of public and private sector data handling.

The final text of both legislative measures will inevitably give rise to plenty of questions (Who you gonna call? Counsel.) but it will be important for those working in the data protection and privacy field not to overlook the Directive in the headline grabbing of its more high-profile sibling. We shall see what trilogue brings us.

Christopher Knight