Lead Forensics
Prettys Solicitors Ipswich


Google, Sadie Frost, Data Protection and Privacy - An update

The information Commissioner has with increasing frequency imposed substantial fines and reprimands on various organisations which infringe the Data Protection Act 1998 (the ‘DPA’), and its eight underlying Principles, the most important probably being that personal data shall be processed fairly and lawfully, and that there has been no deception or misleading in obtaining it.

However, so far as individuals who wanted to make DPA infringement claims personally, section 13(2) of the DPA caused a problem, because no compensation for distress for upset was available unless the individual could also show actual financial loss.  This has traditionally been considered fatal to any such claims, as it is only in very exceptional circumstances that an individual can show actual financial loss.

That has in all likelihood now changed in light of a case called Vidal-Hall v Google.

Vidal-Hall and others sued Google alleging that Google circumvented their Apple Safari web browser security settings to install cookies without their consent, and then sold the Browser Generated Information it obtained to third parties for the purposes of targeted marketing.  A strong Court of Appeal decided that distress only damages could be claimed, having in particular mind the precedence which the EU Charter of Fundamental Rights has over UK statute, and that section 13 of the DPA was inconsistent with Article 23 rights.  The matter is on appeal to the Supreme Court, but it is unlikely that the Court of Appeal decision will be overturned, and even if it were to be, the likelihood is that there would be a valid challenge through the EU courts.

In summary, the likely consequence of the Vidal-Hall case is that those organisations which infringe individuals’ data protection rights will for the first time face a very real financial risk for their wrongdoings.

In the employment context, this will make it even more significant that employers comply with their notification requirements, so as to satisfy the requirements of the DPA, as well as also observing the likes of The Telecommunications Regulations 2000 and in the case of public bodies, The Regulation of Investigatory Powers Act 2000.

Another significant matter which has recently reached the Court of Appeal relates to the Mirror Group appealing damages awards made against it in phone hacking compensation cases, which were based on the misuse of private information.

The previous benchmark had been the Max Mosley award of £60,000 against the News of the World for invading his privacy in reporting on his involvement in sex acts involving five consenting women – the ‘sick Nazi orgy’ article.

The trial judge in the Mirror Group case approached the question of compensation on an item by item basis, awarding compensation, for example in the case of Sadie Frost, for each of the 27 articles which stemmed from phone hacking incidents, separate awards in respect of the activities of private investigators, with additional amounts for distress and to mark the court’s displeasure with the general invasion of privacy, she had suffered – which all made a grand total of £260,250.  The Mirror Group appealed on a variety of grounds, perhaps the most notable being that the awards for Sadie Frost and other claimants were disproportionate to awards given to compensate those who suffer significant personal injuries or, are compensated for breaches of their human rights, and that there should be a global rather than itemised process for evaluating compensation.  These (and the other grounds) were rejected by the Court of Appeal in December 2015.

The author believes that there is a trend becoming apparent, with rights and entitlements previously pursued via by defamation law (which has become even more expensive and difficult following recent changes to defamation law) being pursued via the much more readily established and cheaper route of claims of breach of the DPA and / or breach of privacy rights.

For more information, please contact Roland Sharp, Consultant in our Commercial dispute resolution department. rsharp@prettys.co.uk

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