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.

Cricketer Ben Stokes and mother Deborah Stokes achieve settlement in privacy case against the Sun newspaper, securing rare unreserved apology

Following the publication of an article in 2019 in the Sun newspaper concerning a family matter before the cricketer was born, Ben Stokes and his mother have achieved a settlement from the Sun newspaper.

Mother of Ben Stokes, Deborah Stokes commented: “The decision to publish this article was a decision to expose, and to profit from exposing, intensely private and painful matters within our family. The suffering caused to our family by the publication of this article is something we cannot forgive.

“Ben and I can take no pleasure in concluding this settlement with the Sun. We can only hope that our actions in holding the paper to account will leave a lasting mark, and one that will contribute to prevent other families from having to suffer the same pain as was inflicted on our family by this article.”

The family were represented by Brabners LLP. Paul Lunt, solicitor to Ben and Deborah Stokes and Head of Litigation, said “The Sun has apologised to Ben and Deborah. The paper has accepted that the article ought never to have seen the light of day. The apology to our clients acknowledges the great distress caused to Ben, Deborah and their family by what was a gross intrusion – and exploitation – of their privacy. Substantial damages have also been paid, as well as payment of legal costs.”

See the Brabners LLP press release here.

The Sun stated: “On 17 September 2019 we published a story titled ‘Tragedy that Haunts Stokes’ Family’ which described a tragic incident that had occurred to Deborah Stokes, the mother of Ben Stokes, in New Zealand in 1988. The article caused great distress to the Stokes family, and especially to Deborah Stokes. We should not have published the article. We apologise to Deborah and Ben Stokes. We have agreed to pay them damages and their legal costs.”

Coverage of the settlement can be found in the Guardian, Press Gazette and BBC Sport, amongst others.

Data protection rights

Personal data, such as your name, likeness, birthday or any other information which can be used to identify you is highly sensitive.

Protecting and bringing actions on the basis of your personal data being harvested, used or misused is a key foundational right to privacy. Continue reading