TPP number 30 on Feedspot – Top 35 Privacy Websites and Blogs

We are delighted to be ranked 30 out of Feedspots top 35 blogs. TPP was ranked alongside law firms and authoritative blogs on privacy law.

According to Feedspot sites are ranked “by traffic rank, social media followers, domain authority & freshness.” The full list can be found here and is a must read for anyone interested in privacy law matters.

TPP re-published by the The Student Lawyer: Use of facial recognition software in school lunch queues in North Ayrshire

TPP is pleased to announce that the article that appeared on this site analysing use of facial recognition software in schools in North Ayrshire has been republished by the Student Lawyer.

The Student Lawyer is a go-to legal news and blogging site for law students. You can find the article here.

Citation: 5RB: European Court of Human Rights upholds Article 8 privacy breach in relation to reputation of a dead person

In a case builds upon pre-existing caselaw on the rights of those who are deceased the European Court of Human Rights has found an article 8 breach in relation to news articles posted about a deceased Roman Catholic Priest.

ML v Slovakia 34159/17 concerned a number of articles published by three Slovakian newspapers about the historic sex offence convictions of the claimants son.

The Court found that the articles were inaccurate and sensationalist citing that: “However, it follows from what has been said above that the domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.

Concluding the Courts stated, applying Article 8:

“…dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention”.

Furthermore the Court stated a clear and concise view on the journalistic integrity of the reporting: “Although the journalists must be afforded some degree of exaggeration or even provocation, the Court considers that the frivolous and unverified statements about the applicants sons private life must be taken to have gone beyond the limits of responsible journalism” -p.47

5RB has an excellent case comment.

ICO launches consultation on the Draft Journalism Code of Practice

The ICO’s consultation on its Draft Journalism Code of Practice has begun.

Be sure to have your say- the deadline to submit responses is 22 January 2022.

The Code covers privacy safeguards among many other topics. In particular, it covers the journalism exemption under the Data Protection Act 2018 and its broad exemption that disapplies requirements to holding and processing data.

Journalism should be balanced with other rights that are also
fundamentally important to democracy, such as data protection and the
right to privacy.

at p.4

The Code substantively addresses the safeguarding of journalism under the exemption, briefly touching on balancing a free press against privacy rights before going on to discuss how this balance is struck under data protection laws:

Why is it important to balance journalism and privacy?


It is widely accepted that a free press, especially a diverse press, is a
fundamental component of a democracy.

It is associated with strong and
important public benefits worthy of special protection. This in itself is a public
interest.

Most obviously, a free press plays a vital role in the free flow of

communications in a democracy. It increases knowledge, informs debates
and helps citizens to participate more fully in society. All forms of journalistic
content can perform this crucial role, from day-to-day stories about local
events to celebrity gossip to major public interest investigations.

A free press is also regarded as a public watch-dog. It acts as an important
check on political and other forms of power, and in particular abuses of
power. In this way, it helps citizens to hold the powerful to account.

However, the right to freedom of expression and information should be
balanced with other rights that are necessary in a democratic society, such
as the right to privacy. The public interest in individual freedom of expression
is itself an aspect of a broader public interest in the autonomy, integrity and
dignity of individuals.

The influence and power of the press in society, and the reach of the

internet, means that it is particularly important to balance journalism and
people’s right to privacy.

This code provides guidance about balancing these two important rights by
helping you to understand what data protection law requires and how to
comply with these requirements effectively.

at p.25

ICO intervenes in nine schools in North Ayrshire which are using facial recognition software to scan faces of pupils in lunch queues

According to the Financial Times and Guardian the ICO is set to intervene in nine schools in North Ayrshire following the discovery that pupils faces were being scanned in lunch queues to take payments.

The ICO commented: 

“Data protection law provides additional protections for children, and organisations need to carefully consider the necessity and proportionality of collecting biometric data before they do so. Organisations should consider using a different approach if the same goal can be achieved in a less intrusive manner. We are aware of the introduction, and will be making inquiries with North Ayrshire council.”

Whilst the company that provides the software argues this a safe way to take payments in the age of covid the question, as the ICO rightly posits, clearly arises as to whether a less invasive method of safely taking payments could be used.

Simple measures such as issuing pupils with lunch cards that they can scan to identify themselves or even with just a unique ID number that could easily be anonymised and aggregated, would just as easily serve this purpose.

Under Article 35 of the GDPR a Data Protection Impact Assessment must be made before this software is used. This would assess whether the use of facial recognition software was a proportionate means for achieving the legitimate aim of securely taking card payments. Aspects such as the retention period of data, storage methods, basis for processing, safeguards and processes for gathering consent must be considered.

Schools should have mechanisms and documentation in place to explain to children the circumstances of this data collection, storage and their rights under the GDPR, including an option to opt out of the data collection. 

Under the GDPR the age where children can consent to the sharing of their personal data in England and Wales is as low as is permissible- thirteen. In Scotland, the location of the schools, the age is lower- at twelve years of age.

Interestingly, North Ayrshire Council indicated that 97% of pupils or their parents had given consent to this process. The Council has temporarily paused the rollout of the software given the ICO’s intervention.

CBR Cumminghams, a company that provides the software, stated that their cameras check pupils faces against encrypted templates, an thus operated differently to “live” facial recognition used by the police to scan for criminal activities, that was challenged in the Bridges case.

A Principal of one of the schools, David Waugh, commented:

“The combined fingerprint and facial recognition system was part of an upgrade to the catering cashless system, so that the time it takes to serve students is reduced, thus giving a better dining experience. However, we will not be using the facial recognition aspect.”

Mischon de Reya has a excellent analysis of these issues, which cover Scotland and are thus outside of TPP’s remit. The BBC also reports on the story.

Duchess of Sussex, Meghan Markle successful in privacy claim against the Mail on Sunday

Meghan Markle has been successful in her privacy claim against the Mail on Sunday regarding the publication of excerpts of the contents of a private letter to her father.

The Duchess’ request for summary judgment on the parts of the claim concerning privacy were granted by Justice Warby.

In finding that the statement of case had no reasonable grounds for defending the claim Warby J considered whether the defence stated has an defence had the ability to offer a defence to the claim of misuse of private information. Further,
“(i) at the time of its publication, the claimant had a reasonable expectation of privacy in respect of the contents of the Letter, and

(ii) this being the case, and
applying the requisite balancing exercise, the defendant has failed to discharge the burden which rests upon it to advance a viable justification for interfering with that
right.” at p.35

Question (i) – A reasonable expectation of privacy

Justice Warby considered whether the Defence set out and had a reasonable prospect of advancing that the claimant no expectation of privacy in the information at issue. Also whether there was an realistic prospect of success of the defendant defending this at trail. Warby considered the response to be no on both counts.

He strictly applied the criteria found in the Murray case:

“(1) The claimant was a prominent member of the Royal Family, and in that sense a public figure, who had a high public profile, and about whom much had been and continued to be written and published; this is an important feature of the background and the circumstances but

(2) the nature of the “activity” in which she had engaged was not an aspect of her public role or functions; she was communicating to
her father about his behaviour, its impact on her, her feelings about it, and her wishes
for the future; and

(3) she was doing this in a letter sent to him alone, privately, by means of a courier service.

(4) The “intrusion” involved the publication of much if not most of the information in the Letter by way of sensational revelations over four pages of a popular newspaper and online, to a very large readership; and that, in broad terms, was the purpose of the “intrusion”.

(5) There was no consent, and it is beyond dispute that this was known to or could have been inferred by Mr Markle and the defendant.

(6) The unwanted disclosure was likely to cause the claimant at least some distress,
especially as it was done with the co-operation of her father, and in the context of a detailed and critical response by him to the content of the Letter.

(7) The information
was given to the defendant by the claimant’s father.” at p.69

Question (ii) – the balancing exercise

Warby J next turned to the fact of whether the publication could be proportionate in pursuit of
the legitimate aim of protecting the rights of others? Is the interference with freedom
of expression that would be represented by a finding of liability necessary and
proportionate in pursuit of the legitimate aim of protecting the rights of the claimant?

In concluding that it could not significant weight was given to Ms Markle’s status as a public figure. It was considered a theme of the Defendant’s arguements that the Duchess had sought to manipulate her image to be seen favourably. In this case an arguement that publication was preventing the public from being misled- a weighty arguement indeed- failed.

Warby J however considered the case “legally untenable or flimsy at best.” Concluding as two part (ii):

“The claimant had a reasonable expectation that the contents of the Letter would remain
private. The Mail Articles interfered with that reasonable expectation. The only tenable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. On an objective review of the Articles in the light of the surrounding circumstances, the inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose. For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy.” at p. 128

The copyright infringement questions were partially disposed off. The remaining copyright issues were left to be considered following the directions given at the next hearing of 2 March 2021.

Citation: Privacy International: Amazon’s contract with the NHS raises data privacy concerns

Privacy International (“PI”) has scrutinized Amazon’s contact with the Department of Health to harvest data for Alexa services.  The contract started from 14 December 2018 and will be in effect till 15 October 2024.

The contract covers Amazon using the data of the NHS website and integrating it with Alexa, allowing Alexa to better respond to medical questions. This permits Alexa to better respond to a range of medical questions with the vetted information available from the NHS website. Readers should note that the arrangement DOES NOT SHARE THIRD-PARTY HEALTHCARE DATA. The focus is permitting Alexa to access the NHS website’s publically available data to enhance its response to heathcare questions. Patient data, as far as we know, was not part of the agreement.

PI then goes on to scrutinize the contract in detail giving an overview of the key terms and conditions. The article also covers the commercial vs public interest issues arising from the redaction of parts of the contract, raising matters of transparency in government contracting.

The sharing of data under this agreement permits Alexa to use data gathered from the NHS website. This is for informational purposes as the site is typically a first port of call for those concerned about symptoms. By integrating this data Amazon helps Alexa enhance its service offering. It has notably been said, by the Guardian, that such accessibility was granted free of charge.

 

Ben Stokes and Gareth Thomas in the press – Protecting privacy in the spotlight

Many will have heard of the Sun’s recent egregious intrusion into the private and family life of cricketer Ben Stokes. The offending article by the Sun delves into the family life of the famous cricketer in a manner which could be seen to breach the privacy rights of Stokes and his family.

The incident has placed the conduct of English journalists, particularly the Sun, under the spotlight. INFORRM has an excellent post on the issue.

Stokes statement on the article, released on Twitter, can be found here.

Many will also be aware of the exposing of rugby player Gareth Thomas’ HIV status following black mail attempts. This move is highly invasive and could be considered a misuse of private information.

The Independent Press Standards Organisation has commented on the incidents. This notes how the Editor’s Code operates to protect individuals in such scenarios and condemns the sensationalist headlines of articles  intruding upon privacy rights.