MI5 admitted that personal data had been unlawfully processed and retained between the period of 2016 and 2019 due to failures in retention, review and destruction practicies.
See pg.79 of the open judgment for a summary of the failings of MI5 in their handling of personal data in particular.
For further, more detailed, context regarding the case see the Privacy International press release.
Judgment has been handed down by the UK Supreme Court in the appeal in the case of Bloomberg v ZXC. The court has found for the respondent, refusing the appeal.
The case has significant implications for the law of privacy. It endorses the finding in the Cliff Richard case and provides crucial precedent on the reasonable expectation of privacy suspects of crime can expect. TPP will have further coverage of the judgment shortly. See the judgment here.
“The courts below were correct to hold that, as a legitimate starting point, a
person under criminal investigation has, prior to being charged, a reasonable
expectation of privacy in respect of information relating to that investigation and that
in all the circumstances this is a case in which that applies and there is such an
expectation.”
at p.146
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
The INFORRM Blog has an excellent post on the inter-related nature of privacy and reputational harms.
Whether an individual has a reasonable expectation of privacy that outweighs the public interest in cases where there has been an investigation, but no charge, by the police is an imminent case before the Supreme Court in the case of ZXC v Bloomberg LP.
The case is before the UK Supreme Court on 30 November and 1 December next week and was cited by Hariharan in his analysis of the proximity between privacy and reputational harms.
The Court of Appeal judgment can be found here. The Court found that there could be a reasonable expectation of privacy in the fact of a police investigation. This builds upon notable caselaw such as the Cliff Richard case.
Warby J. at p.55
The Sicri case concerned the publication of an article by the Mail Online following the arrest of a man for having a connection with Manchester Arena suicide bomber Salman Abedi. The Mail Online did not remove the article after the claimants’ release and divulged his name via an alternative spelling, address and other identifiable details. The claimant was successful and awarded £83,000 in damages as he had a reasonable expectation of privacy in respect of his identity remaining private when his arrest was reported. It should be noted that this reasonable expectation was assessed at pre-charge stage.
Warby J. at 190
This is part of our new “quotes from caselaw” series, looking to bring you short snippets from leading judgments on privacy, which highlight its importance and development.
We hope all our readers are safe and well and enjoying the festive season.
On 29 November 2018, the Government published its response to the 2013 consultation on costs protection in defamation and privacy claims. In particular, the written statement by the Lord Chancellor and Secretary of State for Justice summarizes the amendments to costs provisions, raising access to justice concerns.
In short, the Government has decided to implement s.44 of the Legal Aid, Sentencing and Punishment of Offenders (LAPSO) Act 2012, making claimant lawyers success fees under conditional fee agreements (“CFAs”) unrecoverable from defendants in defamation and privacy cases commencing 6 April 2019. The consolation is that after-the-event insurance (“ATE”) fees remain recoverable. This article considers how these changes perpetuate imperfect solutions that harm access to justice.
The Privacy Perspective 