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.

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.

Citation: INFORRM Blog, ZXC v Bloomberg LP: Privacy and Reputational Harm – Jeevan Hariharan

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.

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.

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

Quotes from caselaw 1: Campbell v MGN [2004] 2 AC 457 – The importance of privacy to liberty

“Privacy lies at the heart of liberty in a modern state. A proper degree of liberty is essential for the well-being and development of an individual”

– Lord Nicholls, Campbell v MGN [2004] 2 AC 457 at [p.12]

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.

Privacy Law Monthly Round Up – September 2021

Headlines

Ben and Deborah Stokes’ privacy claim against The Sun for the highly intrusive article detailing traumatic events in the Stokes’ family past was settled on 30 August 2021, with the newspaper agreeing to publish an apology and pay substantial damages. Paul Wragg wrote about The Sun’s “nonsensical” defence for the Inforrm Blog, concluding that the only party spared the anguish of trial was the newspapers’ defence team.

Government and General legislative developments

The controversial Police, Crime, Sentencing and Courts Bill had its second reading in the House of Lords this month. The Bill is notorious for its proposed restrictions on peaceful protest, which critics have predicted will have a discriminatory impact and breach the rights to freedom of expression and assembly. Broadened police powers would also enable the extraction of more information from mobile phones.

The Age Appropriate Design Code (aka the “Children’s Code”) entered into force on 2 September 2021 following a one year transition period. The Children’s Code explains to businesses how the UK GDPR, Data Protection Act and Privacy and Electronic Communications Regulations apply to the design and delivery of Information Society Services (“ISS”) – i.e social media, educational and gaming platforms – apply to children. The Children’s Code is the first of its kind worldwide, and has been welcomed by many as a positive development for keeping children safe online. The 15 standards that the Code sets can be found here.

Sticking with child safety online, Home Secretary Priti Patel launched a Safety Tech Challenge fund at the G7 meeting start of this month. Five applicants will be awarded up to £85,000 each to develop new technologies that enable to detection of child sexual abuse material online, without breaking end-to-end encryption.

The UK Government has launched a public consultation on data protection legislation reform following Brexit entitled Data: A new direction. The consultation is open until 19 November. Following the end of the Brexit transition period, the UK’s data protection regime, which had derived from the EU framework, will be transposed into domestic law known as the UK GDPR. The Government is seeking to use this opportunity to make some changes to the current regime. The Hawtalk Blog discusses how some of these proposals are unethical and unsafe. Further discussion can be found on the Panopticon Blog and the Data Protection report

Data Privacy and Data Protection

Cressida Dick, the Metropolitan Police Commissioner, has accused tech giants of undermining terrorist prevention efforts by virtue of their focus on end-to-end encryption. Writing in The Telegraph on the twentieth anniversary of the 9/11 attacks, she said that it is “impossible in some cases” for the police to fulfil their role to protect the public. Given the pressure on tech giants to ensure users’ privacy, companies are unlikely to reshape their platforms to facilitate more extensive monitoring.

Apple has delayed its plan to scan its users’ iCloud images for child sexual abuse material. The proposed detection technology would compare images before they are uploaded to iCloud against unique “digital fingerprints” of known child pornographic material maintained by the National Centre for Missing and Exploited Children. The plan was criticised by privacy groups because it involved using an individual’s own device to check if they were potentially engaged in criminal activity.

Surveillance

The Metropolitan Police have invested £3 million into new facial recognition technologies (FRT) that will greatly increase surveillance capabilities in the capital. The expansion of the Met’s technology will enable it to process historic images from CCTV feeds, social media and other sources in order to track down suspects. Critics argue that such FRT encroaches on privacy by “turning back the clock to see who you are, where you’ve been, what you have done and with whom, over many months or even years.” There is also concern that FRT can exacerbate existing racial discrimination in the criminal justice system. The UK’s Surveillance Camera Commissioner (SCC), Professor Fraser Sampson, has acknowledged that some FRT “are so ethically fraught” that it may only be appropriate to carry them out under license in the future.

NGO’s

Big Brother Watch published an opinion piece warning that the imposition of vaccine passports could reorganise Britain into a two-tier, checkpoint society. The article responds to the Scottish Parliament’s vote in favour of vaccine passports earlier this month. Wales has since followed Scotland and announced mandatory vaccination and COVID status check schemes. The English government has not yet committed to such a regime. The ICO has emphasised that data protection laws will not stand in the way of mandatory vaccination and COVID status checks, but rather facilitate responsible sharing of personal data where it is necessary to protect public health. 

Privacy International has considered how data-intensive systems and surveillance infrastructure, developed by national and foreign actors, in Afghanistan as part of developmental and counter-terrorism measures will fare under the Taliban regime.

From the regulator

ICO

The ICO has announced two fines this month;

  • A total of £495,000 was imposed against We Buy Any Car, Saga, and Sports Direct for sending more than 354 million “frustrating and intrusive” nuisance messages between them. None of the companies had permission to send recipients marketing emails or texts, making their behaviour illegal;
  • The Glasgow-based company DialADeal Scotland Ltd was fined £150,000 for the making of more than 500,000 nuisance marketing calls to recipients who had not given their permission to receive them.

The ICO has also released a communiqué from a meeting on data protection and privacy held by the G7 authorities at the start of the month. The meeting is closely aligned with the Roadmap for Cooperation on Data Free Flow with Trust announced by G7 Digital and Technology Ministers on 28 April 2021.

IPSO

IPSO has published a number of privacy rulings and resolutions;

IMPRESS

There were no IMPRESS rulings relating to privacy this month.

Cases

The Inforrm Blog has published an article detailing the continued decline in privacy injunction applications in England and Wales for 2021. There were only three applications in the first six months of the year, down from ten in 2020. All three applications were successful. Only 4% of the new issued cases on the Media and Communications List related to misuse of private information or breach of privacy.

No judgements relating to privacy have been handed down this month.


Written by Colette Allen

Colette Allen has hosted “Newscast’” on The Media Law Podcast with Dr Thomas Bennett and Professor Paul Wragg since 2018. She has recently finished the BTC at The Inns of Court College of Advocacy and will be starting a MSc in the Social Sciences of the Internet at the University of Oxford in October 2021.