Data Protection, Direct Marketing, English Law, Information Law, Information Rights, Legal System, Politics, Privacy, Privacy and Electronic Communications Regulations, Scots Law, UK Constitution

Data Protection and the #EUref

Data Protection is not an area that people generally get especially excited about, but the rights contained in the Data Protection Act 1998 (“the DPA”) are important.  They enable individuals to find out (mostly) what information companies and organisations hold about them, where they got it from, what they do with it, who they give it to and what it says.  It also enables people to take a degree of control over what companies and organisations do with that information; including the ability to prevent a company from using their information for marketing purposes, forcing them to correct inaccurate information and forcing them to stop “processing” their information where the processing causes substantial damage or distress that is unwarranted.

The DPA implements an EU Directive into domestic law.  Data Protection law in the UK has its roots in European law.  However, it’s not just the DPA that has its roots in European law; the connected Privacy and Electronic Communications Regulations 2003 (the full name of which is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003) also implement European law into domestic law.  These Regulations relate to the use of personal data and are the regulatory regime that governs the use of electronic communications (such as E-mail, phone and text) to market directly to individuals.  These are the regulations which help deal with those annoying and unsolicited PPI and accident claims telephone calls.

In 2018 the Directive that underpins the DPA is being replaced with a new EU Regulation on Data Protection and the Directive underpinning the 2003 Regulations is currently being reviewed in light of the new EU Data Protection Regulation (the European Commission is consulting on this issue until 5 July 2016).

The DPA replaced the Data Protection Act 1984.  The 1984 Act was introduced to give protection to individuals in relation to the automatic processing of their personal data and was based upon the Council of Europe’s (the same Council of Europe behind the European Convention on Human Rights and Fundamental Freedoms) 1981 Convention for the protection of individuals with regard to automatic processing of personal data.

Now that there has been a brief account in respect of the history of Data Protection law in the United Kingdom, it is possible to thrust into the main purpose of this article; that is to consider Data Protection in the context of the EU Referendum.

If the UK votes to remain in the European Union then in May 2018 the United Kingdom will have to comply with the General Data Protection Regulation (which, being a Regulation, will have direct effect regardless as to whether the UK Parliament enacts a new Data Protection Act or not) together with the associated Directives; including whatever eventually replaces the 2002 e-Privacy Directive.  The associated Directives, together with some of the fudges in the new Regulation, will likely mean that there will be a new Data Protection Act to replace the current Act (probably towards the end of 2017).

If the UK votes to leave the European Union what happens is a bit more uncertain.  A vote to leave the EU will not mean that there is a complete end to the UK’s relationship with the EU, and that will have an impact on Data Protection.

The first thing to note is that a vote to leave will not mean an instantaneous split.  There currently isn’t really a process for an EU Member State to leave the Union so some time will be spent working out how that happens and there will inevitably be a time spent negotiating a new relationship with the EU; whether that is inside of or outside of the EEA.  It seems quite likely that we will still be in the EU come May 2018, which might mean that the GDPR will automatically apply – but that is entirely dependent upon what happens in terms of negotiations between the vote to leave and May 2018.

If the United Kingdom simply becomes part of the EEA then the result, insofar as Data Protection is concerned, will be identical to a vote to remain; the GDPR applies to the EEA countries (presently being Iceland, Liechtenstein and Norway) as well as to EU Member States.

If the United Kingdom leaves the EU and doesn’t join the EEA there will be bit more freedom in respect of Data Protection.  However, the requirement for Data Controllers within EU Member States not to transfer personal data to a country outside of the EU/EEA, unless there is an adequate level of protection for personal data, will mean that we will continue to have some form of Data Protection law.

It is possible that the UK could meet the adequate level of protection requirement with rights that are substantially lower than those afforded by the DGPR (when it enters into force) and so the UK’s Data Protection law will not necessarily be all that similar to the GDPR – especially if the government of the day is one that favours light-touch regulation and a lack of “red tape”.  That means that even if the UK is forced to comply with the GDPR initially, Data Protection law in the UK could change dramatically to something that affords much less protection than the GDPR.  What the law will look like though will not only depend upon the ideals of the government of the day, but what they think would be politically acceptable; over the last 30 or so years people have become much more wary about what governments, public agencies and businesses do with their personal data; so while the political will might be to substantially lower the level of protection afforded to individual’s personal data, the public will might not let them go quite as far as they wish!

In short, the future of Data Protection law in the UK will be very much influenced by the result of the Referendum and the eventual relationship with the EU in the event of a vote to leave.

Data Protection, Information Law, Information Rights

Another day, another DPP7 breach and another Monetary Penalty

Section 2 of the Data Protection Act 1998 stipulates that information concerning a person’s health (mental or physical) is sensitive personal data.  This means that a person’s health information attracts a higher level of protection under the Data Protection Act 1998; the damage and distress that can result from the inappropriate disclosure or processing of a person’s health information can be significant.  People can experience bullying, harassment and/or discrimination as a consequence of mental or physical health conditions.  Some health conditions, mental or physical, can attract far more discrimination than others do.  HIV is, sadly, a health condition that still attracts a certain amount of discrimination and prejudice in the UK today.  With that in mind, an NHS Trust sending out its E-mail newsletter to users of its HIV sexual health services, with all of the recipients E-mail addresses visible to every other recipient, is likely to result in the said NHS Trust being in more than a bit of bother with the Information Commissioner’s Office.  That’s exactly what happened to one NHS Trust in London.

The Information Commissioner has served  a Monetary Penalty Notice in the amount of £180,000 on Chelsea and Westminster Hospital NHS Foundation Trust after a member of staff E-mailed out a Newsletter to users of 56 Dean Street with all 781 recipient’s E-mail addresses being visible to all of the recipients.

56 Dean Street is a Soho based sexual health clinic which provides sexual health services to patients, including patients who are HIV positive.  The clinic had developed a service whereby patients with HIV were able to receive results and to make appointments and enquiries online.  They, together with a small number of patients who were not HIV positive, received newsletters from the clinic.  Some of the E-mail addresses included the full name of the patient whose E-mail address it was.  In September 2015, a member of staff sending out one of the clinic’s newsletters sent the E-mail with all of the recipient’s E-mail addresses in the “to” field, rather than the “bcc” field.  This meant that each recipient was able to see the E-mail addresses of all other recipients.

This was not the first time that a member of the Trust’s staff had done this in respect of E-mail addresses of HIV Patients.  The Monetary Penalty Notice served on the Trust records a similar incident that occurred in March 2010.  In that incident, a Pharmacist sent out a questionnaire to 17 patients receiving treatment for HIV about their treatment.  The E-mail addresses of all recipients were included in the “to” field, rather than the ‘bcc’ field; meaning that they were visible to all recipients.  The Monetary Penalty Notice records that remedial steps were put into place by the Trust following that breach, it doesn’t state what they were; however, it does record that there was no training given to staff to remind them to check the group E-mail addresses were being placed in the correct field, nor had they replaced the E-mail account being used with one that would enable separate E-mails to be sent to each address on the mailing list.

The Monetary Penalty Notice records that subscribers were not told that their E-mail addresses would be used to send Newsletters to other patients by way of a bulk E-mail and also notes that one of the subscribers should have been removed from the list following their relocation to Essex.

The Commissioner found that the Trust had breached the seventh Data Protection Principle, which relates to having appropriate technical and organisational measures in place to protect against unauthorised or unlawful processing of personal data as well as against the accidental loss or destruction of, or damage to, personal data.  The Commissioner considered that the Trust had failed to comply with the seventh data protection principle by not using an E-mail account that enabled separate E-mails to be sent to each recipient, and also by failing to provide adequate training to staff to ensure that E-mail addresses were being placed in the correct field.

The Commissioner was satisfied that the Trust was responsible for the breach.  The Commissioner was also satisfied that the Trust had not intended to breach the seventh data protection principle.  However, the Commissioner was satisfied that the breach that had occurred was reasonably foreseeable and that the Trust should have therefore taken steps to prevent the breach from occurring.

Once again a breach of the seventh Data Protection Principle has resulted in enforcement action being taken by the Information Commissioner.  The Information Commissioner’s enforcement action in respect of Data Protection breaches has almost exclusively centred on breaches of the seventh Data Protection Principle.  Each time enforcement action is taken it carries with it national publicity.  Therefore, Data Controllers ought to be well aware that failures to have in place adequate internal processes and security measures to protect personal data, especially where that Data Controller is also a public authority, are extremely likely to result in enforcement action being taken by the Information Commissioner – and that is aside from the reputational damage that inevitably comes with security breaches around personal data.

It is important that Data Controllers ensure that they have in place adequate policies and procedures as well as software and other technical measures (such as password protection and encryption) to protect against all reasonably foreseeable data breaches.  That requires organisations to review the personal data that they hold, together with the ways in which they process that personal data, to identify vulnerabilities in respect of the security of personal data that they hold.  The results of getting it wrong can be substantial, both financially and reputational.

The current maximum financial penalty available to the Information Commissioner is capped at £500,000; however, when the new Data Protection regulation enters into force in May 2018 (subject to the results of the EU referendum next month) the maximum financial penalty for such breaches will increase to 4% of net global turnover of €20 million and so the financial consequences of getting it wrong could be even greater in two years time than what they currently are.

When a Data Controller processes personal data they are being trusted with that data by the Data Subject.  Some Data Controllers are entrusted with some of the most sensitive personal data about an individual, perhaps things that only a few other trusted people know; that level of trust can be huge.  It’s not the sort of information that should just be left lying around; it needs to be kept safely and securely and be processed in a way that is appropriate for its nature; especially when the information in question is (rightly) defined as sensitive personal data.

Data Protection, FOISA, Freedom of Information, Information Law, Information Rights, Scots Law, Scottish Information Commissioner

Gilroy -v- Scottish Information Commissioner

The Court of Session has issued a rare judgment in respect of an appeal under the Freedom of Information (Scotland) Act 2002 (FOISA).  Yesterday the First Division published its judgment in the case of David Gilroy –v– The Scottish Information Commissioner and the Chief Constable of Police Scotland.

The Appellant, David Gilroy, had been convicted of the Murder of Suzanne Pilley at the High Court of Justiciary.  Mr Gilroy sought information from the Police Service of Scotland, as the statutory successor to Lothian and Borders Police (who had conducted the investigation to the murder of which Mr Gilroy has been convicted).  The information he sought related to CCTV that had been seized by the Police as part of the murder investigation.  The Police initially responded by saying that the information sought had been released to Mr Gilroy’s defence team and so he could obtain it that way, but had not complied with the technical requirements imposed in FOISA for a refusal notice.  Mr Gilroy required that the Police conducted a review into their handling of the request.  In response to the requirement for review, the Police refused the request on the grounds that it was exempt under section 38(1)(a) of FOISA – which provides that information to which the applicant is the data subject of is exempt.  This is an absolute exemption and therefore it is not subject to the public interest contained in section 2 of the FOISA.  Such information can be sought by way of a ‘subject access request’ pursuant to section 7 of the Data Protection Act 1998.  The Police also cited the exemption at section 34(1)(c) of FOISA.

Mr Gilroy made an application to the Scottish Information Commissioner pursuant to section 47(1) of FOISA.  The Commissioner issued a Decision in respect of that application (Decision 005/2015) finding that the Police were correct to withhold the information under section 38(1)(a).  Section 56 of the FOISA provides a right of appeal to the Court of Session against a decision of the Scottish Information Commissioner on a point of law.  Mr Gilroy appealed the decision of the Scottish Information Commissioner to the Court of Session.

The Court of Session’s decision is a short one. The relationship between the Data Protection Act 1998 and FOISA has been the subject of previous litigation and nothing new was brought out in this case.  The litigation that has previously occurred in this field has confirmed that the question of whether information is personal data is a factual one.  The Lord President (Carloway), in giving the decision of the Court, considered that there was “no identifiable error of law” in the Commissioner’s decision (para [14]) and that there was no “point of law to be considered” (Para [15]). The Lord President’s judgment states that Mr Gilroy’s appeal was “essentially an application to this court to review an assessment of fact made by the first respondent”. Mr Gilroy’s appeal was therefore refused by the Court.

The judgment does highlight (once again) the wide scope of the definition of personal data in the Data Protection Act.  The Information in question was not stills or footage from the CCTV, but rather a list of images together with details such as location, dates and times.  This was considered by the Court to clearly be within the definition of personal data and that the Appellant was the data subject (para [14]).

The Commissioner did not consider in her decision the question of the application of section 34(1)(c) to the information because it was, in her view, exempt under section 38(1)(a).  The Court of Session therefore did not consider it either.

The Court’s judgment can be read on the Scottish Courts and Tribunals website here.

Constitutional Law, Criminal Justice, Criminal Law, Human Rights, Legal System, Politics, Public Law, Scots Law

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

FOIA, Freedom of Information, Information Law, Information Rights

Valid FOI Requests via Twitter: Part 2

Earlier this week the question of the validity of tweeted information requests under the Freedom of Information Act 2000 arose once again.  I have written on this subject previously and you can read that post here.  The discussion arose following the decision of the First-Tier Tribunal (Information Rights) in the case of Bilal Ghafoor v the Information Commissioner.  In that case the Tribunal determined that Mr Ghafoor had not made a valid request for information for two reasons: (1) Mr Ghafoor did not provide his real name in his request and (2) he did not provide an address for correspondence.  My view is that in respect of both of these questions the Tribunal was wrong.

You can read the full procedural history in the Tribunal’s decision (paragraphs 2 – 12).  Mr Ghafoor appealed to the Tribunal on whether the DWP had failed to comply with section 11 of the Freedom of Information Act 2000 buy not responding to his request via Twitter.  However, the Tribunal essentially performs a full reconsideration of the entire request when it hears a case.  Instead the Tribunal decided that Mr Ghafoor had not made a valid request for information by virtue of not including his real name (para 29) and also because twitter was no a valid address for correspondence (para 28).

Real Name

It has long been understood that in order for a request for information to be valid it must include a person’s real name.  This is not something that is new and it is something that I mentioned in my previous consideration on this blog of the question of tweeted FOI requests.  However, what I have not given much consideration to, until now, is the question of aliases as opposed to pseudonyms.

In my view the use of a pseudonym quite clearly fails to comply with the requirement that a requester include their real name.  The purpose of a pseudonym is to hide a person’s true identity.  This is, in my view, quite different to an alias.  An alias is a name by which a person is also known, it is not something that is used to hide their identity; rather it is more akin to a name which is part of their identity.

In the case of Mr Ghafoor, the name FOI Kid is more of an alias than a pseudonym.  It is a name by which he commonly goes, not to hide his identity (as evidence by his inclusion of his name in his twitter bio).  He may only be known by that name within certain circles, but in my view that does not detract from the fact that ‘FOI Kid’ could be considered as part of his identity.  It is a name by which he goes online and is identifiable within information rights circles.

What is someone’s real name?  Is it the name that appears on their birth certificate?  How many people do you know that do not go by the name that is on their birth certificate?  For example, I have an uncle who is more commonly known by his middle name – many people will not have a clue what is true first name is.  I know of others who also go by a name other than that on their birth certificate and again who people will not have any idea what their true name is.

Could a John Smith who trades as Smiths not be able to make a request for information in the name “Smiths”?  I would say that he can because it is a name by which he commonly goes, in a professional capacity at least.  Indeed, a public authority might want to know that it is John Smith of “Smiths” who is making the request because perhaps the tender exercise that Mr Smith is making a request for information about was one in which “Smiths” submitted a bid.  Mr Smith might therefore be entitled to additional information under section 7 on of the Data Protection Act 1998 (the right of subject access) than someone other than him making the request.

Therefore, my view is that an alias by which someone has been going for some time would comply with the requirement to provide the name of the applicant in section 8 of the Data Protection Act 1998.  In the case of Mr Ghafoor my view is that ‘FOI Kid’ is an alias so well established that it would comply with the requirements of section 8.

Address for Correspondence

The Tribunal also concluded that Mr Ghafoor did not make a valid request for information because twitter was unsuitable for responding to and made reference to the 140 character word limit.  However, I disagree with this conclusion also.

Firstly, there are free services such as ‘Twitlonger’ which enable people (including public authorities) to send tweets longer than 140 characters.  Furthermore, it is possible to attach media to tweets through the Twitter site and also a range of social media management services used by businesses and other organisations.  While it might not be possible to send a full refusal notice or to disclose information through the 140 characters permitted by Twitter, it is however possible to attach a pdf letter and other attachments to tweets.  In my view there is no difference between this and attaching letters and documents for disclosure to an E-mail.  It might take multiple tweets to send the complete response together with all of the attachments to the requester, but the same is true for E-mail.  File size limits often mean that multiple E-mails need to be sent in order to supply all of the information being disclosed by the public authority.

For those reasons I take the view that twitter is an appropriate address for correspondence and the Tribunal fell into error by concluding that it was not.  Perhaps their error came about as a failure to full understand the exact parameters of the operation of twitter, but in my view it fell into error nonetheless.

Data Protection, Information Law, Information Rights

More cross-border Data Protection

On Thursday the Court of Justice of the European Union issued another decision on the interpretation of Direction 95/46/EC – the Data Protection Directive.  The case was on reference from the Hungarian Supreme Court and asked a number of questions around when a data controller is established in a particular member state for the purposes of the Directive.

Factual Background

Weltimmo s.r.o is a company registered in Slovakia under Slovakian law. It operates one or more property websites which are written in Hungarian and feature Hungarian properties.  The Company offered one month’s free advertising before beginning to charge its customers for the use of its service.  Somewhat unsurprisingly a lot of people took advantage of the one month free offer and then sought to have their adverts and personal data erased at the conclusion of the free month.  Weltimmo did not delete the advertisements or their personal data and instead charged its customers for the use of its services.  Those charges went unpaid and Weltimmo passed details of the ‘debtors’ onto debt collection agencies in Hungary.

Complaints were made to the Hungarian Data Protection Authority who found that Weltimmo had breached Data Protection law.  A fine of approximately €32,000 was imposed on Weltimmo.  Weltimmo appealed and the fine was overturned; however, it was determined that Weltimmo was established in Hungary for the purposes of Hungary’s data protection law.  Weltimmo disagreed and appealed to the Hungarian Supreme Court, who made a reference to the Court of Justice of the European Union.

Other important facts narrated in the Court’s decision are: that the company had a Hungarian bank account; it had a letter box in Hungary that was used for its every day affairs; and it had a representative in Hungary who sought to negotiate settlements of the unpaid debts.

Court’s decision

The Court made reference to Google Spain and stated that “establishment on the territory of a Member State implies the effective and real exercise of activity through stable arrangements and that the legal form of such an establishment, whether simply a branch or subsidiary with a legal personality.” [28] The Court went on to say that there is a “flexible definition of the concept of ‘establishment’, which departs from a formalistic approach whereby undertakings are established solely in the place where they are registered.” [29]

Essentially what the Court is stating here is that there may be a difference between where a company is registered and where it is established for the purposes of data protection law.  It is necessary to look at where the exercise of activity is and not just about where it has a physical presence by way of a building or a registered office.  A company registered in Scotland, but which deals exclusively in the Republic of Ireland might find itself subject to the data protection law of the Republic of Ireland as opposed to that of the United Kingdom.

In the present case, the Court noted at paragraph [32] that “the activity exercised by Weltimmo consists, at the very least, of the running of one or several property dealing websites concerning properties situated in Hungary, which are written in Hungarian and whose advertisements are subject to a fee after a period of one month.  It must therefore be held that the company pursues a real and effective activity in Hungary.”

In Google Spain the Court held that the Directive does not require the processing of personal data to be carried out by the establishment, but only that it be carried out “in the context of the activities” of the establishment (Google Spain, [52]).  The Court considered that there was “no doubt” that this was the case in the Weltimmo case. [38] Therefore, unless any of the facts concerning bank accounts, representatives and letter boxes proved to be incorrect (matters which it is for the national court to determine) Weltimmo is established in Hungary for the purposes of data protection law.

The Court did stress that the owners of the properties being advertised had Hungarian nationality was of no relevance in determining the question of which national law was applicable. [40]

The referring court had also sought guidance from the Court concerning the imposition of sanctions.  The Court emphasised the responsibility of national authorities to take action within their own territory and that they may investigate any complaints made to it where the national law of another member state is applicable. [54] However, the Court was equally clear that a national authority cannot impose a sanction upon a data controller who is not established in their territory. [56] This is fairly obvious and stems from the sovereignty of nations.  In those circumstances the national authority that has investigated the matter should pass on the case to the national authority that has jurisdiction to impose a penalty seeking that they do so; based where necessary on any information supplied to that national authority by the authority who initially investigated the complaint.  [57]

For example, the Information Commissioner’s Office cannot take action against Facebook because it is not established in the UK; however, it may investigate a complaint from someone in the UK as to how Facebook has processed their personal data before passing it to the Irish Data Protection Commissioner, who does have jurisdiction by virtue of Facebook being established in the Republic of Ireland.  It would then be for the Irish Data Protection Commissioner to establish whether Facebook has broken Irish Law in relation to data protection and to then impose penalties in accordance with Irish Law, making use of the information passed to it by the ICO.

This is an important judgment that gives very good and strong advice on handling cross-border data protection issues where the internet is involved.  It stresses the need for data protection authorities across Europe to work in co-operation to ensure the rights of data subjects are protected whilst personal data is being processed.  The coming reforms (expected to be in force middle – late 2018) will not move away from that; indeed, with the proposed ‘one-stop’ regulation it will only increase that requirement.

Data Protection, Direct Marketing, Information Commissioner, Information Law, Information Rights, Privacy, Privacy and Electronic Communications Regulations

Round-Up on DPA and PECR: September 2015

A new, trial feature on the blog in which I take a monthly look at the Monetary Penalty and Enforcement Notices issued by the ICO together with the formal undertakings also published.


September has seen the Information Commissioner issue two Monetary Penalty Notices in respect of breaches of PECR and publish three formal undertakings following breaches of the DPA.

General Dental Council

The General Dental Council (‘the GDC’), a statutory regulator, gave the Commissioner an undertaking to comply with the seventh Data Protection Principal.  This followed an incident in which fitness to practice allegations and a CD containing background information relative to the allegations were sent to the wrong practitioner.  An investigation by the GDC established that the error had occurred because the recipient had a similar name to the intended recipient.

The GDC had in place guidance on the processing of such information; this had not been followed by the employees who had arranged for this information to be sent out.  The GDC’s guidance and processes required that the CD on which the background information was sent was encrypted.  In this particular incident the CD was not encrypted.

The Commissioner established that while the GDC had in place sufficient policies and procedures, there was a lack of corporate refresher training in relation to data protection for those employees whose job roles entailed the processing of personal data.  The GDC had introduced induction training, but this was not rolled out to existing staff.  The GDC did have examples of where data protection training was being delivered; however, much of this was delivered on an ad hoc basis.

The Undertaking records a second incident where a patient’s dental records had gone missing.  The GDC’s investigation suggested that the records had never left their office, but had instead been securely destroyed.  However, the employee involved in this incident had not received induction data protection training.

Cold Call Elimination Ltd

The Commissioner served a Monetary Penalty Notice on Cold Call Elimination Ltd following breaches of PECR.  Somewhat ironically Cold Call Elimination Ltd was making unsolicited cold calls to sell a service and device to stop unsolicited cold calls.

The Commissioner wrote to the company following a number of complaints to the Commissioner and the Telephone Preference Service.  The Company provided an explanation and further explained that it would be putting in additional measures relating to unsolicited marketing calls.  The Commissioner placed the company on a period of monitoring for a period of 3 months, during which a large number of complaints continued to be received.

The Commissioner’s Office met with Cold Call Elimination Ltd to discuss its compliance with PECR following which a further period of monitoring took place.  During that second period of monitoring there was a drop in the number of complaints received, but the Commissioner described this as an insignificant drop.

The Commissioner had received 46 complaints directly from individuals who were subscribed to the Telephone Preference Service between 14 June 2013 and 31 March 2015.  The Telephone Preference Service had received 336 complaints over the same period.

The Commissioner determined that the company was in breach of Regulation 21 of PECR and subsequently issued a Monetary Penalty Notice in the amount of £75,000.

Martin & Company

Martin & Company, a firm of solicitors, gave the Commissioner an undertaking to comply with the seventh Data Protection Principal following an incident in which a DVD containing CCTV footage went missing.  The firm was acting for a criminal accused and the CCTV footage was released to them by the Crown Office and Procurator Fiscal Service (‘the COPFS’).  Martin & Company is based in Ayr and the DVD required to be collected from the COPFS office in Kilmarnock.  Martin & Company instructed a third party to collect the DVD from the COPFS.  The DVD went missing having been collected by the third party, but before reaching Martin & Company.

The Commissioner’s investigation found that there were some shortcomings in Martin & Company’s procedures.  In particular the Commissioner highlighted a lack of guidance to staff regarding the DPA as well as relevant training on the DPA.  The Commissioner also took the view that there was a lack of formal procedure for staff when arranging to have personal data collected from outside of the office environment.

FlyBe Limited

FlyBe Limited, an airline, gave the Commissioner an undertaking to comply with the seventh Data Protection Principal following an incident in which a temporary employee sent a scanned image of another individual’s passport to his personal E-mail address.  The incident occurred in the department responsible for processing airside clearance for other FlyBe staff.

The Commissioner investigated and discovered that FlyBe did not provide any training to its staff members who processed personal data, including the temporary employee who was involved in this particular incident.  The Commissioner also found that FlyBe’s data protection policy was inadequate and only provided limited information.

Home Energy & Lifestyle Management Ltd

The Commissioner served a Monetary Penalty Notice on Home Energy & Lifestyle Management Ltd following breaches of PECR.  Home Energy & Lifestyle Management Ltd engaged in a marketing campaign via automated recorded calls to 6 million people in relation to the ‘Green Deal’, a Government backed energy saving initiative

The Commissioner wrote to the company having received a number of complaints about the calls being made.  The Company explained that it had now ceased the marketing campaign and that it had not realised that there were different rules in the Privacy and Electronic Communications Regulations for recorded calls as opposed to “live” calls.  The company also sought to explain the calls by attempting to lay the blame at the door of the third party company it had contracted to make the calls on its behalf.

The Commissioner’s office received 242 complaints concerning Home Energy & Lifestyle Management Ltd’s calls during a three month period of monitoring. The Commissioner decided that the company had breached Regulation 19 of PECR. The Commissioner also found that the company had breached Regulation 24 of PECR by not identifying the person who was sending the automated marketing calls, not providing the address of the person and not providing a telephone number on which the person responsible for making the calls can be reached free of charge.

The Commissioner issued a Monetary Penalty notice requiring the company to pay the sum of £200,000, the largest amount ever required for a breach of PECR. Press reports of the Monetary Penalty Notice have indicated that the company intends to appeal.

Comment

In respect of the three undertakings for breaches of the Data Protection Act 1998 it is clear that data controllers, even large organisations, are still failing in the basics by not having in place adequate policies and procedures covering data protection and failing to provide adequate induction and refresher training on data protection to those who handle personal data.  This is a regular feature in enforcement action taken by the Information Commissioner.  Having in place sufficient policies and procedures, as well as training and adequate checks to ensure compliance, will reduce the chances of experiencing a data breach in the first place.  Furthermore, it will undoubtedly serve to mitigate any enforcement action taken by the Commissioner should a data controller experience a breach.

The Monetary Penalty Notices issued this month highlight the importance of ensuring that organisations undertaking marketing by telephone have in place he appropriate consents and take sufficient steps to ensure that the calls are not made to individuals who have registered with the Telephone Preference Service.  They also highlight the truth of the latin maxim ignorantia legis neminem excusat – or ignorance of the law excuses no one. Following a change in the law, it is now much easier for the Commissioner to issue Monetary Penalty Notices in respect of breaches of PECR; it is therefore now much more likely that breaches of PECR will result in the Commissioner issuing Monetary Penalty Notices.