Top 10

Quotes from caselaw 7: Driver v CPS [2022] EWHC 2500 KB – a departure from the starting point of a reasonable expectation of privacy in criminal investigations pre-charge on “special facts” and low value data breaches

The Privacy Perspective1 Comment

This case is illustrative of a set of facts where the legitimate starting point of a reasonable expectation of privacy in respect of a criminal investigation at pre-charge stage under English law can be can be departed from:

Whilst a reasonable expectation of privacy in relation to a police investigation is the starting point, on the particular and somewhat special facts of this case, I am unable to conclude that by June 2019 such an expectation subsisted in relation to the information that the CPS were considering a charging decision in relation to the Claimant.

at p.147, Knowles J.

Note reference by the judge to the “special facts” of the case. For the special facts this case turns on in relation to the article 8 grounds see p.148-151.

The case concerned the passing of a file from the CPS and the disclosure of that fact to a third party. This was objected to by the claimant on data protection and privacy grounds.

Whilst the disclosure did not include the name of the claimant, it was found that “personal data can relate to more than one person and does not have to relate exclusively to one data subject, particularly when the group referred to is small.”- p.101

In this case, the operation in question, Operation Sheridan, concerned only eight suspects, of which the claimant was one.

Accordingly in finding for the claimant it was considered that “this data breach was at the lowest end of the spectrum. Taking all matters together in the round, I award the Claimant damages of £250. I will also make a declaration that the Defendant breached the Claimant’s rights under Part 3 of the DPA 2018.” – at p.169

However, in relation to a claim for breach of article 8, as p.147 reflects, the claim was unsuccessful. This was due to the judge considering that there were “special facts” this case turns on in relation to the application of article 8, meriting departure from starting point of there being a reasonable expectation of privacy in criminal inversitgations at pre-charge stage (in particular, see p.148-151).

Such “special facts” included, in combination: an ongoing investigation for many years, the Claimant’s own waiver of their right to privacy by making details of the case at pre-charge stage public themselves (including to media outlets), further proceedings after that intial disclosure, including the Claimant’s arrest in 2017 and further passing of police files to the CPS in 2018 in relation to that same Operation Sheridan.

This case is illustrative of how privacy cases in light of ZXC fall within a spectrum, allowing for circumstances in which the legitimate starting point it established can be departed from, albeit this case turning on “special facts” which are clearly, in this instance, narrow and particularly unique. It also clarifies what facts are considered to give rise to a data breach “at the lowest end of the spectrum” and that the value of such breaches is reflected in nominal damages awards- in this case £250 and a declaration.

This case was number 2 on my Top 10 Data Protection and Privacy Law Cases 2022.

Top 10 Privacy and Data Protection Cases 2022

The Privacy Perspective2 Comments

Inforrm covered a wide range of data protection and privacy cases in 2022. Following my posts in 2018, 2019,  2020 and 2021 here is my selection of notable privacy and data protection cases across 2022.

  1. ZXC v Bloomberg [2022] UKSC 5

This was the seminal privacy case of the year, decided by the UK Supreme Court. It was considered whether, in general a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

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Top 10 Defamation Cases 2022

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Inforrm reported on a large number of defamation cases from around the world in 2022.  Following my widely read posts on 2017,  2018,  2019, 2020 and 2021 defamation cases, this is my personal selection of the most legally and factually interesting cases from England, Australia and Canada from the past year.

  1. Vardy v. Rooney [2022] EWHC 2017 (QB)

An interim hearing in this case featured at number five in my 2021 list.  We now have the final judgment in the “Wagatha Christie” case between Rebekah Vardy and Coleen Rooney as number one in my 2022 list. The case was one of the most high-profile libel cases in recent years, concerning the alleged leaking of posts from Ms Rooney’s private Instagram account to the Sun by Ms Vardy, via her agent Ms Caroline Watt. The resulting post on social media regarding Ms Vardy’s involvement in the leaks by Ms Rooney, were the subject of the libel claim.

Ultimately the claim of libel against the defendant, Coleen Rooney, was dismissed due to the defence of truth being established. Notably, “the information disclosed was not deeply confidential, and it can fairly be described as trivial, but it does not need to be confidential or important to meet the sting of the libel.” [287]

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Top 10 Defamation Cases 2021: a selection – Suneet Sharma

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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 Levant, 2021 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

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Inforrm covered a wide range of data protection and privacy cases in 2021. Following  my posts in 2018, 2019 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 Masons, Hill Dickinson, Clifford Chance, Bindmans 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

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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 BBC, Pinsent 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 IAPP, Bird & 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 Manager, Data Guidance, Simmons & 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 Week, Data 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 May, the 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 BBC, Keller 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.

Top 10 Defamation Cases 2020

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In 2020 there were many significant defamation cases from across the United States, United Kingdom and Australia. These cases provided prominent forums for defamation cases and facilitated for significant development, analysis and application of the law.

  1. Depp v News Group Newspapers [2020] EWHC 2911 (QB) 

The highly publicised libel trial of Johnny Depp against the publisher of the Sun newspaper. The action came following the publication of an article characterising Depp as “wife beater Depp”.  It was concluded: 

“The Claimant has not succeeded in his action for libel. Although he has proved the necessary elements of his cause of action in libel, the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true.”    

There was an Inforrm case comment. Coverage from news outlets was also predictably broad with the Independent, News.au and the Sun itself. Depp is reported appealing the finding.    

  1. Serafin v Malkiewicz & Others  [2020] 1 WLR 2455  

An action for libel and misuse of private information in respect to an article published in October 2015. The Supreme Court here provided guidance on s.4 of the Defamation Act 2020, the public interest defence. The case is also significant due to the rare instance of the UK Supreme Court ordering a full retrial in the case, concluding that “the justice system has failed both sides” with “deep regret” and “a degree of embarrassment in relation to respected colleagues” in the Court of Appeal. There was an Inforrm case comment and a comment from 5RB Chambers.  

  1. Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2912 (QB) 

A defamation trial concerning the publication of an article on Buzzfeed alleging that the claimants took actions to undermine the democratic party leadership throughout March-September 2016. It was not established that the defendant was responsible in law for the publication of the publication complained of.  There was an Inforrm case comment. 

4. Vardy v Rooney [2020] EWHC 3156 (QB) 

A preliminary trial as to meaning following Ms Rooney’s statement on her Instagram account that she had identified who was leaking details of her personal life to the Sun. There was an Inforrm case comment. As expected the case drew a media frenzy with commentary from the Metro, CNN, Telegraph, Daily Mail and INews.   

  1. Campbell v Dugdale [2020] CSIH 27  

A case in First Division, Inner House of the Court of Session. The case concerns allegations that a tweet made by the claimant was homophobic. The then Leader of the Scottish Labour Party described the tweets as “homophobic” and described the author as “someone who sprouts hatred and homophobia towards others”. It was affirmed that the defence of fair comment was applicable here and the appeal was dismissed. Brodies LLP has a case comment.  

  1. 1704604 Ontario Ltd. v. Pointes Protection Association; Bent v. Platnick   

These two cases analysed anti-SLAPP legislation in Ontario providing a detailed review of the language of the legislation and how it ought to, theoretically, be applied. Plantick involved the application of these principles with the 5:4 split suggesting that there remains a high degree of judicial discretion at play in the application of Ontario anti-SLAPP legislation. There was an Inforrm case comment.  

7. Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687.  

The case concerned allegations made in a book written by journalist Steve Cannane, published in 2016, which concerned the Church of Scientology in Australia. The Claimants sued for defamation over the book’s contents, despite the issues raised having been found against them by an enquiry 30 years previously. The case covered determinations of many factual matters and ultimately the claimants were unsuccessful. There was a  5RB news item. 

  1. Rush v Nationwide News [2020] FCAFC 115  

The Newspapers failed attempt to appeal against the original finding in the Geoffery Rush defamation case from last years list, this concerned the assessment of the award of damages made by the Court. The award of $2,872,753.10 to Mr Rush was upheld. The case was covered by the BBC.  

  1. Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.  

A finding that establishes that media companies can be considered publishers of comments made by readers on their social media accounts. This means media companies can be held responsible for responses to media they post. The Court of Appeal majority in the case concluded: “it is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person”.  

There was an Inforrm comment on the case. 

  1. Higgins v Irish Aviation Authority [2020] IECA 157.   

A €387,000 defamation award by a jury to an Aer Lingus pilot against the Irish Aviation Authority (IAA) has been cut to €76,500 by the Court of Appeal. Mr Justice Donald Binchy, on behalf of the three-judge COA, found the appropriate sum for general and aggravated damages was €76,500.  There were pieces in The Irish Examiner and the Sunday Times. There was a discussion on the Ronan Daly Jermyn website.