Does ISPO’s Editors Code need to be reformed to protect the relatives of the accused? – Freyja McLoughlin

The British press has been described as a ‘watchdog’ when it comes to protecting the public, and arguably this function is of upmost importance when reporting on criminal cases and their developments. The wide spread reporting of Wayne Couzins brutal kidnap, rape and murder of Sarah Everard, and most shockingly his abuse of his role as an officer in the Met Police to carry out such an atrocity has dominated headlines this Autumn. It is of vital importance that this case was given such a high level of exposure; because with such exposure and public outrage, organisations are forced to address institutional problems – and hopefully prevent such monstrosities occurring again.

However when there is such widespread coverage of an accused; because that is what they are before they have been convicted, no matter how compelling the evidence or the story, the risk of Contempt of Court is always lurking. In Couzins case, the Attorney General, Rt Hon Michael Ellis QC MP, recognised that the reporting was spiralling and subsequently published a statement saying,

‘it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine’. Contempt proceedings did not become an issue in Couzins case ultimately, however it is a useful prop to demonstrate how heavy the reporting was.

ISPO’s, Editors Code of Practice is one tool which is designed to present press reporting over-stepping the line and amounting to contempt. However ISPO is also, as its website declares, designed ‘To support those who feel wronged by the press and to uphold the highest professional standards in the UK press’. This article will therefore be focusing on if these ‘missions’ of ISPO still appear effective when focusing on the coverage of Couzins wife, Elena Couzins. As well as examining if the ISPO Editors’ Code of Practice sufficiently protects the privacy rights of family members of the accused. It is highly unlikely that family member coverage of an accused could amount to contempt under the Act, however perhaps under the veins of ISPO such prejudicial reporting, although not amounting to contempt, could be prevented.

The Editors’ Code of Practice is applicable to all signatory newspapers, which raises the first question as to its enforcement potential. Questions have been raised that ISPO are reluctant to enforce hefty fines or regulate stringently out of fear that newspapers will simply abstain from joining the organisation. Such a view was articulated by Brain Cathcart, when he stated that ISPO appear to ‘bend over backwards to avoid finding breaches of the code’ and this view point is embodied by the fact after ISPO has never, in its 7 years of existence, used its powers of investigation or issued a single fine. ISPO therefore doesn’t appear to be acting as a sufficient deterrent in any case, including when considering the privacy of the relatives of the accused; is a body which has never issued a fine really going to appear a serious threat to multi million pound newspapers? The statistics echo such a response, off the 9,766 complaints and enquires made to ISPO in 2019, 55 were upheld, a shockingly small number.  The second concern, which this article shall be focusing on is that the Clause’s themselves being interpreted too narrowly and thus failing to protect the public adequately; again this is echoed in the statistics, in 2019 of the 8,891 complaints which didn’t warrant a possible breach, 2,617 of these failed because they didn’t satisfy any criteria for raising a breach. This therefore suggests the threshold needed to qualify as a potential breach is higher than the public would expect it to be. The exception of public interest, which applies in 9 out of the 16 clauses adds another level of protection between the press and an infringement of a Clause. These factors combine mean ISPO appears the opposite of it what it declared itself to be in 2014, ‘the toughest press regulator in the Western World’.

One article in particular in Couzins case is surely the manifestation of everything ISPO is designed to prevent, with extracts including ‘what happened to his [Couzins] and children and where are they now?’. What follows from this questioning title is a detailed life story of Couzins wife, with loaded comments surrounding her English language skills, ‘She didn’t speak very good english’ and personal details surrounding their children and how they met. ISPO clearly states it does not cover issues of ‘taste and decency’ due to the infringement of editorial freedom it would result in, and perhaps this title would immediately be described as one of ‘bad taste’. However this article will be outlining how this article could also be perhaps be disputed, through Article 2, Privacy.

Clause 2 states

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

The first factor that is immediately apparent when considering Clause 2 is that it is marked with ‘The Public Interest’ exception.  Public Interest within the code is interpreted in a broad manner, and has the effect of allowing infringements of clauses such as ‘Privacy’ or ‘Reporting on Suicide’, if it is in the public interest to do so. It is indisputable that there was a public interest in the Couzin case. In the regular manner of there being a  genuine public interest in freedom of expression itself [bullet point 2], which prevents such atrocities being hidden away, and also in disclosure of an organisation failure [bullet point 1(4)], which seems particularly relevant given the criticism of the met policies toxic masculine culture. Yet it is surely arguable that there is no public interest in reporting extensively upon Couzins wife, she was not a threat to public safety, her existence was not a miscarriage of justice and her marriage wasn’t contributing to public debate in an constructive manner. The press are highly likely, if forced to justify themselves, to argue that Elena’s arrest for assisting an offender creates a public interest; and there is no denying that it adds weight to their argument. Yet Elena was released with no charge and hence had no involvement in the crime; following on from this, ZXC V Bloomberg confirmed that individuals have a realistic expectation of privacy pre charge, which was the exact status of any potential proceedings against Elena. The press are well aware that ‘gossip sells’, and what better sick gossip than a women’s husband of 15 years committing one of Britains most horrific crimes. It can therefore certainly be argued that ISPO are defending the press’s ability to print stories that sell well, rather than protecting individuals who are at the receiving end of the press’s glare.

And the principles of Murray V Express Newspaper indicate the law is heavily in favour of ISPO’s viewpoint; indicating Elena Couzins would not be successful in bringing her case to court. In Murray, J.K Rowling’s son was photographed with a long camera lense whilst being pushed down the street, much similar to the press photograph, which accompanied almost every article of Elena, of her walking down the street outside her house. In Murray’s case, the court ruled against the claimant, and presented their judgment in the following manner:

‘on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference.’

Both Campbell and Von Hannover respectively create the precedent that there can be no expectation of privacy in public places, especially when considering a ‘High profile individual’. An interesting angle when considering these cases in the voluntary nature of the ‘celebrity’ in questions, a princess and a model. And although J.K Rowling, an author, could be brought in this category, her son could not, and thus it is highly doubtful the court would move away from this precedent when considering Elena’s non consensual profile.

The case of Jones V Mail Online in 2019 was one of the few which resulted in a ruling against the newspaper; it was found publishing videos a crime season which included images of a dead body was sufficient to qualify as an intrusion into the family grief and shock. This therefore appears to be offering some level of protection to family’s, although it is the victims family rather than accused. However, the case was upheld under Clause 4, which requires publications not to break news of a death to immediate family, rather than Clause 2. This therefore suggests what ISPO objected to was the death being revealed by the newspaper, rather than the images and impact it had on the family. Thus even a positive ruling for the complaints does not appear to demonstrate IPSO taking a compassionate and protective step for the well being of the family.

In conclusion, it appears ISPO take a very stringent and narrow approach when considering rulings against the press, and cases which involve the accused’s relatives bear no exception to this rule. ISPO, at its core, appears to reflect the view of the court and protect the public interest and the need for freedom of expression, rather than individuals privacy or well being. It therefore seems a stretch for them to declare they ‘support those who feel wronged by the press’; as they rarely believe any wrong has occurred. If this is right depends on ones perspective; however it seems harsh in cases such as Elena Couzin’s where no role has been played in the crimes committed, yet you are constantly considered alongside them.

This article was written and submitted to TTP and is published with permission and thanks to the author, Freyja McLoughlin.

Top 10 Defamation Cases 2021: a selection – Suneet Sharma

Inforrm reported on a large number of defamation cases from around the world in 2020.  Following my widely read posts on 2017,  2018,  2019 and 2020 defamation cases, this is my personal selection of the most legally and factually interesting cases from England, Australia and Canada from the past year.

Please add, by way of comments, cases from other jurisdictions which you think should be added.

  1. Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27

The controversial finding of the majority of the High Court of Australia that news organisations were publishers of third-party comments on their Facebook pages.

Mr Voller brought defamation proceedings against a series of media organisations alleging that each of the applicants became a publisher of any third party comment on its Facebook once it was posted an read by another user. He was successful at first instance and the successive appeals against the finding was rejected.  The position was summarised as follows

“each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments” [105].

Inforrm had a post about the decision.

The Australian Government are already proposing to reverse the effect of this decision by statute – see the Inforrm post here.

  1. Lachaux v Independent Print Limited [2021] EWHC 1797 (QB)

In the latest instalment in the long running saga of the Lachaux libel litigation, Mr Justice Nicklin dismissed the Defendants’ public interest defence and ordered the publishers of The Independent, The i and the Evening Standard newspapers to pay £120,000 in libel damages to aerospace engineer Bruno Lachaux. The defendants falsely alleged he had, amongst other things, been violent, abusive and controlling towards his ex-wife, that he had callously and without justification taken their son away from her, and that he had falsely accused his ex-wife of abducting their son.

The Judge provided important commentary on the standards to be upheld by defendants seeking to establish the public interest defence to what would otherwise be considered defamatory coverage.  He said:

I have no hesitation in finding that it was not in the public interest to publish [Articles], which contained allegations that were seriously defamatory of the Claimant, without having given him an opportunity to respond to them. The decision not to contact the Claimant was not a result of any careful editorial consideration, it was a mistake …journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed the publication would be in the public interest, but also how and with whom this was established at the time…

Informm had a case comment as did, 5RB.

The saga has not yet concluded.  The defendants have been granted permission to appeal and their appeal will be heard by the Court of Appeal on 12 April 2022.

3. Hijazi v Yaxley-Lennon[2021] EWHC 2008 (QB)

A case concerning a short altercation between two pupils on the playing field of Almondbury Community School in Huddersfield. A video was taken of the incident which subsequently “went viral”, just after the perpetrator of the altercation was expelled from school. He later received a caution for common assault for the incident.

On 28 and 29 November 2018 Mr Yaxley-Lennon used his Facebook account to post two videos of himself giving his opinion on the incident. He suggested, contrary to narratives emerging from media coverage of the altercation, that some of the sympathy toward Mr Hijazi (the claimant) were undeserved as he had committed similar violence.

Both videos were found to be defamatory of Mr Hijazi

In finding for the claimant after the substantive trial, Mr Justice Nicklin stated:

“The Defendant’s allegations against the Claimant were very serious and were published widely. The Defendant has admitted that their publication has caused serious harm to the Claimant’s reputation. The consequences to the Claimant have been particularly severe. Although it was media attention on the Viral Video that first propelled the Claimant (and Bailey McLaren) into the glare of publicity, overwhelmingly that coverage (rightly) portrayed the Claimant as the victim in the Playing Field Incident. The Defendant’s contribution to this media frenzy was a deliberate effort to portray the Claimant as being, far from an innocent victim, but in fact a violent aggressor. Worse, the language used in the First and Second Videos was calculated to inflame the situation. As was entirely predictable, the Claimant then became the target of abuse which ultimately led to him and his family having to leave their home, and the Claimant to have to abandon his education. The Defendant is responsible for this harm, some of the scars of which, particularly the impact on the Claimant’s education, are likely last for many years, if not a lifetime.”

There was an Inforrm Case Comment

4.  Abramovich v Harpercollins Publishers Ltd & Anor [2021] EWHC 3154 (QB)

Chelsea FC owner Roman Abramovich succeeded at a preliminary issue trial on meaning. Mrs Justice Tipples found that all nine of the meanings of allegations relating to Abramovich’s purchase of Chelsea FC “on the directions of President Putin and the Kremlin” were defamatory.

The case concerned a claim of defamation against Catherine Belton and publisher Harper Collins of allegations made in the her book, Putin’s People: How the KGB Took Back Russia and Then Took On The West.

5.   Vardy v Rooney [2021] EWHC 1888 (QB) Inforrm Case Comment

Known as the “Wagatha Christie litigation” this concerned a claim of defamation brought by Rebekah Vardy against Coleen Rooney. The case stems from series of statements published by the defendant on her public Instagram account. Mr Justice Warby, previously found that the statements meant:

Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.

This part of the litigation concerns the claimants attempts to strike out and claim summary judgment. A number of paragraphs of the Amended Defence were struck out in relation to allegations of the claimants’ publicity seeking behaviour.

  1. Nettle v Cruse [2021] FCA 93

Sydney based plastic surgeon Dr Nettle refused to operate on Ms Cruse. Cruse posted comments which were highly defamatory of Dr Nettle throughout 2018. This included creating a website in the URL of Dr Nettle’s name. Allegations ranged from failing to keep records confidential to performing unauthorised surgeries. The court found in Dr Nettles favour concluding:

“Dr Nettle has proved that he was defamed by Ms Cruse in four publications in 2018.  Judgment will be entered for Dr Nettle with damages payable by Ms Cruse assessed at $450,000.  Injunctions restraining Ms Cruse from republishing the four impugned publications, or the imputations which have been found to be conveyed by them, will be made permanent.  Ms Cruse will also be ordered to pay Dr Nettle’s costs of the proceeding.”             

  1. Webb v Jones [2021] EWHC 1618 (QB)

A libel claim arising from Facebook postings. The claimant failed to comply with the pre-action protocol and failed to provide particulars of publication context in her pleading until three months after service of the Claim Form.  The defendant’s application for strike out in this case was successful.  The case provides useful guidance on the procedural niceties of conducting a libel claim. Inforrm has a case comment. 

  1. Corbyn v Millett [2021] EWCA Civ 567

The respondent issued defamation proceedings against Jeremy Corbyn in respect of an interview he gave on the Andrew Marr Show in which he had referred to people in the audience as “Zionists” who “don’t understand English irony”.  Saini J held that this made a defamatory allegation of fact.  Mr Corbyn, appealed.  Warby LJ held that the judge did not err in finding that the words ‘disruptive’ and ‘abusive’ were statements of fact?  The appellant was “presenting viewers with a factual narrative”.  He also held that the Judge’s approach to  ‘bare comment’ had been correct and there was no error of law in the finding that imputation were defamatory at common law?

  1. Greenstein v Campaign Against Antisemitism [2021] EWCA Civ 1006

A libel claim against the Campaign Against Antisemitism after the Campaign referred to Greenstein in a series of five articles published on its website. The appeal was against an order striking out particulars of malice and judgment entered into in favour of the Campaign. In upholding the first instance decision, Dingemans LJ reiterated the principles to finding malice from Horrocks v Lowe [1975] AC 135.

  1. Chak v Levant2021 ABQB 946

Rebel Media founder Ezra Levant, was ordered to pay damages of $60,000, following Leonard J finding he defamed a political science professor and former Liberal candidate during a 2014 Sun News broadcast. Levant claimed Farhan Chak “shot up” a nightclub when he was 19 years old.

Top 10 Privacy and Data Protection Cases of 2021: A selection – Suneet Sharma

Inforrm covered a wide range of data protection and privacy cases in 2021. Following  my posts in 20182019 and 2020 here is my selection of most notable privacy and data protection cases across 2021:

  1. Lloyd v Google LLC [2021] UKSC 50

 In the most significant privacy law judgment of the year the UK Supreme Court considered whether a class action for breach of s4(4) Data Protection Act 1998 (“DPA”) could be brought against Google of its obligations as a data controller for its application of the “Safari Workaround”. The claim for compensation was made under s.13 DPA 1998.  The amount claimed per person advanced in the letter of claim was £750. Collectively, with the number of people impacted by the processing, the potential liability of Google was estimated to exceed £3bn.

Lord Leggatt handed down the unanimous judgement in favour of the appellant Google LLC:

“the claim has no real prospect of success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google.”

The case has been heralded for its central importance in determining the viability of data protection class actions. The case drew wide coverage from Pinsent MasonsHill DickinsonClifford ChanceBindmans and Stewarts.

  1. HRH The Duchess of Sussex v Associated Newspapers Limited [2021] EWHC 273 (Ch) and [2021] EWCA Civ 1810.

In February 2021 Meghan, Duchess of Sussex, won her application for summary judgment against the Mail on Sunday.  Warby LJ said there were “compelling reasons” for it not to go to trial over its publication of extracts of a private letter to her estranged father, Thomas Markle.  He entered judgment for the Duchess in misuse of private information and copyright.  There was a news piece on Inforrm and a piece by Dominic Crossley.

Associated Newspapers was granted permission appeal and the appeal was heard on 9 and 11 November 2021 with judgment being handed down on 2 December 2021,  The Court, Sir Geoffrey Vos MR, Sharp P and Bean LJ, unanimously dismissed the appeal on all grounds, stating:

“Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.” [106]

 The case has been analysed on INFORRM by Brian Cathcart.

  1. Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367

The Federal Court of Australia found that Google misled some users about the personal location data it collected through Android devices between January 2017 and December 2018.

The Court found that, in providing the option, “Don’t save my Location History in my Google Account”, represented to some reasonable consumers that they could prevent their location data being saved on their Google Account. In actual fact, users need to change an additional setting, separate, to stop their location data being saved to their Google Account.

Inforrm had a case comment.

  1. Hájovský v. Slovakia [2021] ECHR 591

Mr Hájovský placed an anonymous advert in a national newspaper offering payment to a woman in return for giving birth to his child. An investigative reporter posed as a candidate interested in surrogacy, replied to the advert and secretly filmed the ensuing meetings. These were later complied into a documentary. A national tabloid also covered the story using stills of footage and taking a critical stance of the applicants’ actions. Both stories revealed the applicant’s identity. This prompted the applicant to bring an action against the media groups for violation of his privacy under Slovakian law.

The Slovakian courts dismissed the application on the basis that the article contributed to a matter of public interest- the debate around surrogacy for payment and in any event the publishing of the advert had brought a private matter, the applicant’s wish to have a child, into the public domain.The ECtHR found in favour of the applicant. In doing so it reiterated the well-established balancing approach vis a vi privacy and freedom of expression as per Von Hannover and Axel Springer. In this instance the court found that the applicants right to privacy had been violated and that the Slovakian courts has erred in their approach to balancing the competing rights. In doing so the court make key observations about the privacy implications of photographs.

Inforrm has a case comment.

  1. Warren v DSG Retail Ltd [2021] EWHC 2168 (QB)

This case concerned the viability of claims for breach of confidence and misuse of private information against data controllers who have suffered cyber-attacks. In dismissing the claims for breach of confidence and misuse of private information Saini J found that both causes require some form of “positive conduct” by the defendant that is lacking where the cause of the private information being leaked is a cyber-attack.

Inforrm had a case comment.

6.  ES v Shillington 2021 ABQB 739

In this case the Alberta Court of the Queen’s Bench awarded damages under new “public disclosure of private fact” tort. The case concerned the making public of images of the claimant engaging in sex acts with the defendant- these had been shared during a romantic relationship between 2005 to 2016 where the parties had two children together. The parties had a mutual understanding that the images would not be shared or published anywhere. However, the defendant then proceeded to share the images online, including those involving the sexual assault of the claimant.

Delivering judgment for the claimant, Inglis J accepted their submissions that a new “public disclosure of private information” tort should be recognised as a separate cause of action from existing common law statutes.

Inforrm has a case comment.

  1. Hurbain v Belgium ([2021] ECHR 544)

 A case in which an order to anonymise a newspaper’s electronic archive was found not to breach the applicant publisher’s right to freedom of expression. This case reflects an important application of the right to be forgotten under article 8 of the Convention.  The applicant, Patrick Hurbain, is the president of the Rossel Group which owns one of Belgium’s leading French-language newspapers, Le Soir, of which he was previously Managing Editor. The article in question concerned a series of fatal car accidents and named one of the drivers, G, who had been convicted of a criminal offence for his involvement in the incidents. G made a successful application for rehabilitation in 2006.

However, Le Soir created a free, electronic, searchable version of its archives from 1989 onwards, including the article at issue.  G relied on the fact that the article appeared in response to a search on his name on Le Soir’s internal search engine and on Google Search. He explained that its availability was damaging to his reputation, particularly in his work as a doctor. The newspaper refused the application by stated it had asked Google to delist/deindex the article.

In 2012 G sued Mr Hurbain as editor of Le Sior and was successful domestically. Mr Hurbain then lodged an application with the Strasbourg Court complaining that the anonymisation order was a breach of Article 10. In balancing the article 8 and 10 rights in the case the Strasbourg Court found in favour of G.

Informm had a case comment.

  1. Peters v Attorney-General on behalf of Ministry of Social Development [2021] NZCA 355

The New Zealand Court of Appeal provided guidance in respect of the tort of invasion of privacy in this high-profile case. In 2017, the Ministry for Social Development (“MSD”) realised that Mr Peters, MP and leader of the New Zealand First Party, had overpaid New Zealand Superannuation (“NZS”). Due to errors NZS had been paid at the single rate when it should have been paid at the partner rate. Mr Peters immediately arranged for the overpaid amount to be repaid.

In August 2017 several reporters received anonymous calls in respect of the overpayment. To pre-empt any publicity, Mr Peters released a press statement addressing the incident. He also issued a claim for infringement of the tort of invasion of privacy against several MSD executives.  The High Court found the MSD executives were proper recipients of information and thus the claim failed.  The Court of Appeal dismissed Mr Peters’ appeal. For an invasion of privacy claim to succeed there is a two “limb” test:

  • the existence of facts in respect of which there was a reasonable expectation of privacy; and
  • that the publicity given to those private facts would be considered highly offensive to an objective reasonable person.

The Court agreed that limb one was met on the facts. However, the Court found that Mr Peters did not have a reasonable expectation of protection from disclosure of this information within MSD and from MSD to the relevant Ministers and select staff. As the claimant could not prove that any of defendants had released information to the media. The appeal was dismissed. The case affirmed the removal of the requirement for there to be widespread disclosure and the potential for the removal of the requirement that disclosure be highly offensive.

  1. R (Open Rights Group and the 3 million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800,

A case concerning “the lawfulness” immigration exemption found in paragraph 4 of Schedule 2 of the Data Protection Act 2018. This exemption allows those processing personal data for immigration control purposes to refuse to comply with the data subject rights guaranteed by the GDPR to the extent that complying with those provisions would prejudice those purposes.  The Court of Appeal found that this exemption was not compliant with Article 23 of the GDPR.

There was coverage from Hunton Andrews Kurth and 11KBW.

  1. Biancardi v. Italy [2021] ECHR 972

The ECtHR found that an order that the editor of an online newspaper was liable for failing to de-index an article concerning criminal proceedings did not breach Article 10 of the Convention. The case concerned an application for the delisting of an article concerning a fight involving a stabbing in a restaurant which mentioned the names of the those involved including the applicant V.X.

Inforrm had a case comment.

Suneet Sharma is a junior legal professional with a particular interest and experience in media, information and privacy law.  He is the editor of The Privacy Perspective blog.

Top 10 EU and UK Data Breach fines of 2021: a selection – Suneet Sharma

This is my selection of the top 5 data breach fines in the EU and the United Kingdom in 2021, many of which have featured in our Law and Media Round Ups over the past year.

EU Fines

  1. Amazon Europe Core S.a.r.l €746,000,000

 Luxembourg’s National Commission for Data Protection issued a fine under the GDPR to Amazon Europe Core S.a.r.l. Amazon plans to appeal the penalty stating “there has been no data breach, and no customer data has been exposed to any third party… these facts are undisputed. We strongly disagree with the CNPD’s ruling.” Whilst Luxembourg’s national data protection law precludes the Commission from commenting on individual cases Amazon disclosed the fine in a filing of its quarterly results with the US Securities and Exchange Commission.

From what we can gather the fine came following a May 2018 complaint by La Quadrature du Net.  The fine is by far the biggest under the GDPR to date.

Bloomberg has the initial report. The fine attracted much coverage from the BBCPinsent Masons and the Hunton Privacy Blog.

  1. Whatsapp Ireland Ltd   €225,000,000

On 2 September 2021 the Irish Data Protection Commission announced a fine of €225,000,000 to Whatsapp. The investigation began on 10 December 2018 and it examined whether WhatsApp has discharged its GDPR transparency obligations with regard to the provision of information and the transparency of that information to both users and non-users of WhatsApp’s service. This includes information provided to data subjects about the processing of information between WhatsApp and other Facebook companies.

The case is notable due to its cross-border nature, which required data protection authorities in France, Germany and the Netherlands to consider it. The fine was considered by the European Data Protection Board, which mandated a reassessment and increase. WhatsApp disagreed with the fine, calling it “wholly disproportionate”.

The IAPPBird & Bird and Pinsent Masons have coverage of the fine.

  1. Notebooksbillinger.de  €10,400,000

The State Commissioner for Data Protection in Lower Saxony fined notebooksbilliger.de AG €10,400,000, issued in December 2020. The Commission found that the company has been using video surveillance to monitor its employees for at least two years without any legal justification. Areas recorded included workspaces, sales floors, warehouses and staff rooms.

Whilst the company argued the cameras has been installed to prevent theft it first should have tried to implement less serve means. Furthermore, the recordings were saved for 60 days which was much longer than deemed necessary.

“This is a serious case of workplace surveillance”, says the State Commissioner for Data Protection in Lower Saxony, Barbara Thiel. “Companies have to understand that such intensive video surveillance is a major violation of their employees’ rights”. While businesses often argue that video surveillance can be effectively used to deter criminals, this does not justify the permanent and unjustified interference with the personal rights of their employees. “If that were the case, companies would be able to extend their surveillance without limit. Employees do not have to sacrifice their personal rights just because their employer puts them under general suspicion”, explains Thiel. “Video surveillance is a particularly invasive encroachment on a person’s rights, because their entire behaviour can theoretically be observed and analysed. According to the case law of the Federal Labour Court, this can put staff under pressure to act as inconspicuously as possible to avoid being criticised or sanctioned for their behaviour”.

Data Privacy ManagerData GuidanceSimmons & Simmons and Luther have commentary.

  1. Austrian Post  €9,500,000

The Austrian Data Protection Authority issued a fine of €9,500,000 to the Austrian Post alleging that it had not enabled data protection enquiries via email.

In October 2019 the Post received a €18,000,000 fine for processing personal data on the alleged political affinity of affected data subjects. The fine was later annulled in a November 2020 court decision. The Post has announced it plans to appeal this second penalty. “The allegations made by the Authority mainly relate to the fact that, in addition to the contact opportunities made available by Austrian Post via mail, a web contact form and the company’s customer service centre, inquiries about personal data must also be made possible via e-mail. Austrian Post also intends to launch an appeal against this decision.”

See coverage from Data Guidance.

  1. Vodaphone Espana   €8,150,000

From April 2018 to September 2019, 191 complaints were received for similar cases concerning telephone calls and SMS messages to citizens who had opposed the processing of their data for advertising. The failure of Vodapone to avoid advertising actions to those citizens who had exercised their rights of opposition or erasure of their data justified a fine.

Coverage was broad with Compliance WeekData Guidance and Stephenson Harwood commenting.

United Kingdom Fines

UK fines- the ICO has issued 35 monetary penalty notices thus far in 2021. Below we take a look at a selection of the fines.

  1. Clearview AI  £17 million

The Information Commissioner’s Office (“ICO”) has issued a provisional view of the imposition of a £17m fine over Clearview AI..  The BBC cites that the firms’ database has over 10bn images. The ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete any such data following alleged serious breaches of the UK’s data protection laws.

In a joint investigation with the Australian Information Commissioner (“AIC”) the ICO concluded that the data, some scraped from the internet, was being processed, in the case of UK persons, unlawfully in some instances.

Clearview AI Inc’s services were being used on a free trial basis by some law enforcement agencies. This has been confirmed to no longer be the case.

The ICO’s preliminary view is that Clearview AI Inc appears to have failed to comply with UK data protection laws in several ways including by:

  • failing to process the information of people in the UK in a way they are likely to expect or that is fair;
  • failing to have a process in place to stop the data being retained indefinitely;
  • failing to have a lawful reason for collecting the information;
  • failing to meet the higher data protection standards required for biometric data (classed as ‘special category data’ under the GDPR and UK GDPR);
  • failing to inform people in the UK about what is happening to their data; and
  • asking for additional personal information, including photos, which may have acted as a disincentive to individuals who wish to object to their data being processed.

Information Commissioner Elizabeth Denham commented:

“I have significant concerns that personal data was processed in a way that nobody in the UK will have expected. It is therefore only right that the ICO alerts people to the scale of this potential breach and the proposed action we’re taking. UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with.

Clearview AI Inc’s services are no longer being offered in the UK. However, the evidence we’ve gathered and analysed suggests Clearview AI Inc were and may be continuing to process significant volumes of UK people’s information without their knowledge. We therefore want to assure the UK public that we are considering these alleged breaches and taking them very seriously.”

 The ICO press release can be found here and the AIC press release here.

The previous statement of the ICO on the conclusion of the joint investigation can be found here.

  1. Cabinet Office  £500,000

The Cabinet Office was fined £500,000 on 2 December 2021 for disclosing the postal addresses of the 2020 New Years honours recipients online. In finding that the Cabinet Office failed to put appropriate technical and organisation measures in place the ICO noted that the data was accessed 3,872 times.

The ICO received three complaints from affected individuals who raise personal safety concerns and 27 contacts from individuals citing similar concerns. Steve Eckersley, ICO Director of Investigations, said:

“When data breaches happen, they have real life consequences. In this case, more than 1,000 people were affected. At a time when they should have been celebrating and enjoying the announcement of their honour, they were faced with the distress of their personal details being exposed.

“The Cabinet Office’s complacency and failure to mitigate the risk of a data breach meant that hundreds of people were potentially exposed to the risk of identity fraud and threats to their personal safety.

 “The fine issued today sends a message to other organisations that looking after people’s information safely, as well as regularly checking that appropriate measures are in place, must be at the top of their agenda.”

The Guardian reports on the data breach as does Data Guidance.

  1. EB Associates Group Limited  £140,000

The ICO issued its largest fine to date to EB Associates Group Limited for instigating over 107,000 illegal cold calls to people about pensions. The practice has been banned since 2019.

Andy Curry, Head of ICO Investigations, said:

“Our priority is to protect people and we will always take robust action against companies operating illegally for their own financial gain.

“Cold calls about pensions were banned to protect people from scammers trying to cheat them out of their retirement plans.

“We encourage anyone who receives an unexpected call about their pension to hang up and then report it to us.”

The fine was covered by professional pensions.

  1. Mermaids  £25,000

It is unfortunate at times that some charities which do the most sensitive of work also hold the most sensitive data. It makes data protection compliance all the more critical. Unfortunately, the transgender rights charity Mermaids fell afoul of data protection laws in the creation of an email group that was not sufficiently annexed or encrypted to protect the data it contained.

The result was that the 780 email pages were identifiable online over a period of three years. This led to the personal information of 550 people to be searchable online. Furthermore. the personal data of 24 of those people revealed how they were coping and feeling. Finally, for a further 15 classified as special category data as mental and physical health and sexual orientation were exposed.

Steve Eckersley, Director of Investigations at the ICO said:

“The very nature of Mermaids’ work should have compelled the charity to impose stringent safeguards to protect the often-vulnerable people it works with. Its failure to do so subjected the very people it was trying to help to potential damage and distress and possible prejudice, harassment or abuse.

 “As an established charity, Mermaids should have known the importance of keeping personal data secure and, whilst we acknowledge the important work that charities undertake, they cannot be exempt from the law.”

This serves a warning call for charities who process sensitive personal data – under the GDPR and the framework of self-reporting you need to have appropriate technical measures in place. Failure to do so puts users’ data at risk and leaves them vulnerable. Mermaids’ penalty was imposed for the data being at risk for the period of 25 May 2018 to 14 June 2019.

It is notable that Mermaid’s data protection policies and procedures were not updated to reflect GDPR standards. Post the implementation of the Data Protection Act 2018 data protection practices are taking increasing importance and a robust review with practical changes to data harvesting, management, retention and rights handling is now a necessity.

DAC Beachcroft comments as does Slaughter and Maythe Independent and EM Law.

  1. HIV Scotland  £10,000

In a cautionary tale for those using bulk email practices HIV Scotland was fined £10,000 for sending an email to 105 people which included patient advocates representing people living in Scotland with HIV. All the email addresses were visible to all recipients, and 65 of the addresses identified people by name.

From the personal data disclosed, an assumption could be made about individuals’ HIV status or risk. The ICO’s investigation found inadequate staff training, incorrect methods of sending bulk emails by blind carbon copy and an inadequate data protection policy.

Ken Macdonald, Head of ICO Regions, said:

“All personal data is important but the very nature of HIV Scotland’s work should have compelled it to take particular care. This avoidable error caused distress to the very people the charity seeks to help.

 “I would encourage all organisations to revisit their bulk email policies to ensure they have robust procedures in place.”

The BBCKeller Lenker and the Times have coverage.  

Suneet Sharma is a junior legal professional with a particular interest and experience in media, information and privacy law.  He is the editor of The Privacy Perspective blog.

Quotes from caselaw 6: HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810- Megan Markle successful in defending appeal by Mail on Sunday

An appeal against the finding for summary judgment for her misuse of private information and copyright claim.

The appellant was granted permission appealed the elements of the case on seven grounds:

i) The new evidence issue: Whether the new evidence provided by each of the
parties should be admitted.

ii) The nature of the attack issue: Whether the judge mistakenly failed to
recognise the significance and importance of the People Article’s attack on Mr
Markle.

iii) The reasonable expectation of privacy issue: Whether the judge adopted a
flawed analysis of the factors undermining the Duchess’s alleged reasonable
expectation of privacy.

iv) The appropriate test issue: Whether the judge wrongly stated the test, by
suggesting that the defendant had to justify an interference with the claimant’s
right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.

v) The right of reply issue: Whether the judge wrongly applied a strict test of
necessity and proportionality to Mr Markle’s right of reply to the People Article.

vi) The public interest/article 10 copyright issue: whether the judge failed
properly to evaluate the interference with article 10, saying that it would be a
rare case in which freedom of expression would outweigh copyright.


vii) The fair dealing copyright issue: whether the judge wrongly relied on his
privacy analysis to reject the fair dealing defence to breach of copyright, bearing
in mind the limited scope of the copyright in the Letter and the wide scope of
the concept of reporting current events.

The Sir Jeoffery Vos decided against the defendant on all grounds dismissing the appeal, in a unanimous judgment, stating summarily:

Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.

p.106

Quotes from caselaw 5: Lloyd v Google LLC [2021] UKSC 50 – no one size fits all claim available in data protection “Safari Workaround” class action

In one of the most significant privacy law judgments of the year the UK Supreme Court considered whether a class action for breach of s4(4) Data Protection Act 1998 (“DPA”) could be brought against Google of its obligations as a data controller for its application of the “Safari Workaround”. The claim for compensation was made under s.13 DPA 1998.

The amount claimed per person advanced in the letter of claim was £750. Collectively, with the number of people impacted by the processing, the potential liability of Google was estimated to exceed £3bn.

“The claim alleges that, for several months in late 2011 and early 2012,
Google secretly tracked the internet activity of millions of Apple iPhone users and used the data collected in this way for commercial purposes without the users’ knowledge or consent.”

Lord Leggatt at p.1

The class action claim was brought under rule 19.6 of the Civil Procedure Rules.

Lord Leggatt handed down the unanimous judgement in favour of the appellant Google LLC:

“the claim has no real prospect of
success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that
individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google.”

At p.159

It should be noted that the claim was brought under the Data Protection Act 1998 and not under the GDPR.

See the full judgement here. The Panopticon Blog has an excellent summary.

ICO issues provisional view to fine Clearview AI Inc over £17 million

The Information Commissioner’s Office (“ICO”) has issued a provisional view of the imposition of a £17m fine over Clearview AI.

The BBC cites that the firms’ database has over 10bn images. The ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete any such data following alleged serious breaches of the UK’s data protection laws.

In a joint investigation with the Australian Information Commissioner (“AIC”) the ICO concluded that the data, some scraped from the internet, was being processed, in the case of UK persons, unlawfully in some instances.

Clearview AI Inc’s services were being used on a free trial basis by some law enforcement agencies. This has been confirmed to no longer be the case.

The ICO’s preliminary view is that Clearview AI Inc appears to have failed to comply with UK data protection laws in several ways including by:

  • failing to process the information of people in the UK in a way they are likely to expect or that is fair;
  • failing to have a process in place to stop the data being retained indefinitely;
  • failing to have a lawful reason for collecting the information;
  • failing to meet the higher data protection standards required for biometric data (classed as ‘special category data’ under the GDPR and UK GDPR);
  • failing to inform people in the UK about what is happening to their data; and
  • asking for additional personal information, including photos, which may have acted as a disincentive to individuals who wish to object to their data being processed.

Information Comissioner Elizabeth Denham commented:

“I have significant concerns that personal data was processed in a way that nobody in the UK will have expected. It is therefore only right that the ICO alerts people to the scale of this potential breach and the proposed action we’re taking. UK data protection legislation does not stop the effective use of technology to fight crime, but to enjoy public trust and confidence in their products technology providers must ensure people’s legal protections are respected and complied with.

Clearview AI Inc’s services are no longer being offered in the UK. However, the evidence we’ve gathered and analysed suggests Clearview AI Inc were and may be continuing to process significant volumes of UK people’s information without their knowledge. We therefore want to assure the UK public that we are considering these alleged breaches and taking them very seriously.”

This is one of the largest fines issued under the GDPR to date. Clearview now has the opportunity to respond, both in the UK and Australia (the AIC has found breaches of Australian privacy laws).

It’s unsurprising that its database, said to have included images scraped from social media, has drawn the attention of regulators. Facial recognition services have been at the forefront of recent data analytics scrutiny and data protection enforceability.

The ICO press release can be found here and the AIC press release here.

The previous statement of the ICO on the conclusion of the joint investigation can be found here.

Quotes from caselaw 4: PJS v News Group Newspapers Limited [2016] UKSC 26 – privacy rights are broader than just confidentiality

It is a rare case where an application for a interlocutory injunction succeeds despite an article on the subject already being published. Such was the case in PJS, one of the most significant English law cases concerning privacy law to date.

The leading judgment was handed down by Lord Mance. It concerned the grant of an injunction to keep details of an extra marital affair between a claimant of great renown being published by the press.

Lord Mance observes the fact that privacy is a zonal right justifying protection, differing in character from the right of confidentiality. The esteemed judge highlights previous cases at paragraphs 58 and 59 of the judgment, endorsing the well entrenched approach from the Court of Appeal.

He characterises privacy, rightly, as extending beyond the bounds of confidentiality. In doing so ones private life becomes a space that should remain, in certain circumstances, free from intrusion.

However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone... “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space”

Lord Mance at p.58-59

Concluding Lord Mance opined on the capacity of the internet to change perceptions of privacy. He acknowledged that the courts need to remain cognizant of this. In doing so he affirmed the findings of previous caselaw, gave credence to commentators and noted the implications of tweeting and blogging:

 I also accept that, as many commentators have said, that the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters – and may already be doing so. The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society. However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long-term way. In that connection, while internet access became freely available in this country only relatively recently, almost all the cases listed at the end of para 59 above were decided since that happened, and many of those cases were decided after blogging and tweeting had become common.

Lord Mance at p.70

TPP has commented further on the PJS case here.