Data Protection Litigation: Pre-action Protocol for Media and Communications Claims

Jane Lambert

 

There has recently been a surge in claims by individuals seeking to enforce their rights under data protection legislation through litigation.  I have appeared in two such claims this week, one in London and another in the Thames Valley.  I have also advised in writing and in conference on several more. A surprising aspect of the surge is that the United Kingdom General Data Protection Regulation ("UK GDPR") and the Data Protection Act 2018 are much more complicated than the Data Protection Act 1998 and the Data Protection Act 1984, which preceded them. Those Acts also provided rights of action, but they were used much less frequently than the present legislation.  Another surprise is the infrequency with which parties refer to the Pre-action Protocol for Media and Communications Claims, even though that protocol applies to all data protection claims.  In both of the cases in which I appeared this week, observance of the protocol would have made a significant difference to the outcome of the litigation.  

Effective Judicial Remedy

Art 79 (1) of the UK GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection Regulation) as modified by The Data Protecion, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) entitles data subjects to an effective judicial remedy if they consider that their rights under the Regulation have been infringed as a result of the processing of their personal data in non-compliance with the regulation.  That includes a right under art 82 (1) to compensation from a controller or processor for any material or non-material damage that may arise as a result of such non-compliance.

Pre-action Protocols

Para 1 of Practice Direction - Pre-action Conduct and Protocols states that pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. Para 2 warns that a person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court.  Para 3 states that the objectives of pre-action conduct and protocols are to enable parties to disputes to:

"(a) understand each other’s position;
(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute."

Para 4 stresses that a pre-action protocol must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.  Para 5 adds that disproportionate costs in complying with any pre-action protocol are likely to be irrecoverable.  Para 6 states that where there is a relevant pre-action protocol, the parties should comply with it before commencing proceedings.  Para 8 reminds parties that litigation should be a last resort. As part of a relevant pre-action protocol, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

Non-compliance with a protocol can be penalized in several ways.  For example, para 16 states that a party at fault may be ordered to pay costs on an indemnity basis or a successful party may be deprived of some or all of his or her costs.

Pre-action Protocol for Media and Communications Claims

Although it is not listed among the "Protocols in Force" in para 18 of PD-Pre-action Conduct and Protocols, para 1.1 of the Pre-action Protocol for Media and Communications Claims states that it applies to data protection claims, including those brought by litigants in person. If a party to a claim becomes aware that another party is a litigant in person, he or she should send a copy of the protocol to the litigant in person at the earliest opportunity.

The aims of the protocol listed in para 2.1 are similar to those of the practice direction, namely enabling parties to prospective claims to:

"(a) understand and properly identify the issues in dispute and to share information and relevant documents;
(b) make informed decisions as to whether and how to proceed;
(c) try to settle the dispute without proceedings or reduce the issues in dispute;
(d) avoid unnecessary expense and control the costs of resolving the dispute; and
(e) support the efficient management of proceedings where court proceedings cannot be avoided."

Para 3.1 requires intending claimants to notify intended defendants of their claims in writing at the earliest reasonable opportunity.   They are also reminded of the need for proportionality in formulating both the letter of claim and response in para 2.2:

"In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached."

The following information should be included in the letter of claim: 

• the name of the claimant;
• the nature of and basis for the entitlement to the remedies sought by the claimant;
• any facts or matters relevant to England and Wales being the most appropriate forum for the dispute; and
• details of any funding arrangement in place.

Para 3.4 adds that letters of claim in data protection cases should also include:

•  "any further information necessary to identify the data subject;
• the data controller to which the claim is addressed;
• the information or categories of information which is claimed to constitute personal data including, where necessary, the information which is said to constitute sensitive personal data or to fall within a special category of personal data;
• sufficient details to identify the relevant processing;
• the identification of the duty or duties which are said to have been breached and details of the manner in which they are said to have been breached, including any positive case on behalf of the Claimant;
• why the personal data ought not to be processed/further processed, if applicable;
• the nature and any available details as to any particular damage caused or likely to be caused by the processing/breach of duty complained of; and
• Where a representative data protection claim is intended to be brought on behalf of data subjects, the letter of claim should also: set out the nature of the entity which intends to bring the claim and explain how it fulfils the relevant suitability criteria – see Article 80 of the General Data Protection regulation (GDPR); include details of the data subjects on whose behalf the claim would be brought; and, confirmation that they have mandated the representative body to represent them and receive compensation, where applicable."

Defendants are required by para 3.6 to provide a full response to the letter of claim, as soon as reasonably possible. If a defendant believes that he or she will be unable to respond within 14 days (or such shorter time limit as specified in the letter of claim), then he or she should specify the date by which he/she intends to respond.

Para 3.7 requires letters of response to include:

• "whether or to what extent the Claimant’s claim is accepted, whether more information is required or whether it is rejected;
• if the claim is accepted in whole or in part, the Defendant should indicate which remedies it is willing to offer;
• if more information is required, then the Defendant should specify precisely what information is needed to enable the claim to be dealt with and why;
• if the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any statutory exemptions or facts on which the Defendant is likely to rely in support of any substantive defence;
• in a defamation or malicious falsehood claim, the defamatory or false imputation(s) the Defendant contends was conveyed by the statement complained of, if any; and
• where the Claimant to a proposed action has indicated his/her intention to make an application to bring the claim anonymously, the Defendant should indicate whether the Defendant accepts such an order would be appropriate and give an indication of the basis for the Defendant’s position."

Para 3.8 reminds parties that litigation should be a last resort, while para 3.9 suggests the following options for parties to data protection disputes:

"(a) without prejudice discussions and negotiations between the parties;
(b) mediation – a form of facilitated negotiation assisted by an independent neutral third party; [and]
(c) early neutral evaluation (ENE) – a third party giving an informed opinion on the dispute (for example, a lawyer experienced in the field of [data protection] or an individual experienced in the subject matter of the claim)......."

Para 3.10 mentions the need to consider offers under CPR Part 36.  If a dispute is not settled, para 3.11 encourages parties to undertake a further review of their respective positions, to consider the state of the papers and the evidence in order to see if proceedings can be avoided and, at least, narrow the issues between them which can assist efficient case management.  

Finally, parties are referred to other provisions which they might find useful, such as CPR Part 25: Interim Remedies and Security for Costs and CPR PD48 paragraphs 3.1 and 3.2: Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Relating to Civil Litigation Funding and Costs.

Further Information
Anyone wishing to discuss this article further may call me on 020 7404 5252 during UK office hours or send me a message through my contact form at any time.

Privacy and Electronic Communications - Leave.EU Group Ltd v The Information Commissioner

Author Mrmw Public Domain CCO 1.0

Jane Lambert

Court of Appeal (Sir Geoffrey Vos, Master of the Rolls, Lord Justice Lewison and Lady Justice Asplin) Leave.EU Group Ltd & Anor v The Information Commissioner [2022] EWCA Civ 109 (8 Feb 2022)

On 1 Feb 2020, the Information Commissioner issued a monetary penalty notice for £45,000 against Leave.EU Group Ltd. under s.55A of the Data Protection Act 1998 and an assessment notice under s.146 of the Data Protection Act 2018.  She issued those notices because Leave.EU Group Ltd. had sent email newsletters to some of its supporters that contained unsolicited marketing material relating to Eldon Insurance Services Ltd.   It appears that Eldon Insurance Services Ltd is now known as Somerset Bridge Insurance Services Ltd.

Leave.EU and Eldon appealed unsuccessfully to the First-Tier Tribunal (General Regulatory Chamber) (see Leave.EU Group Limited Eldon Insurance Services Limited v The Information Commissioner 2020 WL 01140646). They appealed to the Upper Tribunal which upheld the First-Tier Tribunal (see Leave.EU Group Limited and another v The Information Commissioner [2021] UKUT 26 (AAC)).  With the Upper Tribunal's permission, they appealed to the Court of Appeal.  On 1 Feb 2022, when the appeal was due to be heard, the Information Commissioner's legal representatives turned up at court but there was nobody from Leave.EU.

The Court asked the Information Commissioner's counsel what they should do. He replied that the Court could either dismiss the appeal for non-prosecution or decide the appeal on the Commissioner's oral and written submissions and Leave.EU's skeleton argument. The Commissioner was neutral as to the course that the Court should adopt but her counsel emphasized the importance of the issues under appeal. The Court decided (i) that it would not be just or appropriate to hear the substantive appeal in the absence of Leave.EU, (ii) that the Court was satisfied that Leave.EU was aware of the appeal hearing and had decided not to attend, and (iii) the appeal should be dismissed and that it would give its reasons in writing later.

The Information Commissioner and the tribunals below had found that Leave.EU and Eldon had contravened art 13 (1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) OJ L 201, 31.7.2002, p. 37–47. Leave.EU has appealed on the following grounds:

"First it contended that paragraph 22 did not prohibit the inclusion of any direct marketing information in an email which was otherwise solicited and not sent for direct marketing purposes, such as the political newsletters in this case. Secondly, Leave.EU contended that the FTT was wrong to hold that the subscribers had not freely consented to receive marketing information from Eldon, since they had consented to receive such material as Leave.EU felt might interest its subscribers. Thirdly, Leave.EU contended that the Information Commissioner ought to be regarded as having been required to give reasons for her decision, despite the absence of a statutory requirement to do so."

In its reasoned judgment which was delivered on 8 Feb 2022, The Master of the Rolls described those issues as "important and in some respects novel" at para [19]. He was satisfied that the Court had power to hear the appeal in the absence of the appellant under CPR 52.20 and rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as well as its inherent jurisdiction but thought it undesirable in the circumstances of this case to try to decide such important questions at the level of the Court of Appeal without full oral argument.

Lord Justice Lewison and Lady Justice Asplin agreed.

According to the Commissioner's counsel, Eldon had been sold to a third party on 31 Jan 2022 who had consented to judgment and reached an agreement with the Commissioner (see her Statement on an agreement reached between Somerset Bridge Insurance Services Limited and the ICO of 1 Feb 2022). The solicitors who had acted for both appellants had applied to come off the record a few days earlier. The Court had tried to communicate with Leave.EU's sole director but he did not respond to its approaches.

The failure of Leave.EU to take any steps in the appeal in the days leading up to the hearing is regrettable.  As Sir Geoffrey Vos noted at [19] an appropriately qualified panel of the Court of Appeal had been ready to hear this case for many months.  The issues upon which the Court had been asked to decide are likely to concern other parties and cases of this kind do not come before the Court of Appeal often. 

Anyone wishing to discuss this article or the procedural or standard issues may call me on 020 7404 5252 during normal business hours or send me a message through my contact form.

What is meant by the "Applied GDPR"

Jane Lambert

The term the "applied GDPR" is defined by s.3 (11) of the Data Protection Act 2018 as  the GDPR as applied by Chapter 3 of Part 2 of the Act.  According to s.4 (3) Chapter 3 applies to certain types of processing of personal data to which the GDPR does not apply and makes provision for a regime broadly equivalent to the GDPR to apply to such processing.   S.22 (1) of the Act provides that the  GDPR applies to the processing of personal data to which Chapter 3 applies as if its articles were part of an Act of Parliament.

Processing to which Chapter 3 applies
S.21 provides that Chapter 3 applies to:

• automated or structured processing of personal data in the course of an activity that:
• falls outside the scope of EU law; or
• is carried out by a member state in relation to the EU's common foreign and security policy but does not fall within law enforcement as that is covered by Part 3 or processing by intelligence services which is covered by Part 4 (s.21 (1)); and
• manual unstructured processing of personal data held by certain public authorities (s.21 (2)).

S.22 (1) extends the GDPR to the processing of personal data to which Chapter 3 applies as if the GDPR's articles were part of an Act of Parliament for the whole UK.   The explanatory note explains that Chapter 3 applies to manual unstructured processing of personal data held by certain public authorities because such processing was regulated by the Data Protection Act 1998 but not by the GDPR. The public authorities concerned are defined by s.21 (5) as public authorities as defined by the Freedom of Information Act 2000 or Scottish public authorities as defined by the Freedom of Information (Scotland) Act 2002.

Modifications to the GDPR

The GDPR that apply to the processing to which Chapter 3 applies are modified by Part I of Sched. 6 to the Act. That part consists of 72 paragraphs most of which modify articles of the GDPR. For instance, art 2 of the GDPR provides:

"Material scope

1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

2. This Regulation does not apply to the processing of personal data:

(a) in the course of an activity which falls outside the scope of Union law;
(b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
(c) by a natural person in the course of a purely personal or household activity;
(d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

3. For the processing of personal data by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data shall be adapted to the principles and rules of this Regulation in accordance with Article 98.

4. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive."

Para 7 substitutes the following provision for art 2 of the GDPR in relation to the processing to which Chapter 3 applies:

“2  This Regulation applies to the processing of personal data to which Chapter 3 of Part 2 of the 2018 Act applies (see section 21 of that Act).”

Supplementary Provisions
As I noted in The Relationship between the Data Protection Act 2018 and the GDPR 20 June 2018, S.4 (2) of the Act provides for Chapter 2 of Part 2 to applies to the types of processing of personal data to which the GDPR applies by virtue of art 2 of the GDPR.  I discussed the provisions of Chapter 2 in my article.  Chapter 2 also applies to the applied GDPR as it applies to the GDPR by virtue of s.22 (2) but Part 2 of Sched. 6 modifies Chapter 2 of Part 2 in respect of those applied GDPR pursuant to s.22 (4) (b).

Interpretation of the Applied GDPR
S.22 (5) of the Act provides:

"A question as to the meaning or effect of a provision of the applied GDPR, or the applied Chapter 2 , is to be determined consistently with the interpretation of the equivalent provision of the GDPR, or Chapter 2 of this Part, as it applies otherwise than by virtue of this Chapter, except so far as Schedule 6 requires a different interpretation."

Rule Making Powers
S.23 (1) enables the Secretary of State to make regulations in relation to the processing of personal data to which Chapter 3 applies.

Manual Unstructured Data
S.24 makes certain modifications to the applied GDPR in relation to unstructured data held by public authorities as defined by the Freedom of Information Act 2000 or Scottish public authorities as defined by the Freedom of Information (Scotland) Act 2002.

Exemptions
Exemptions are made for manual unstructured data used in longstanding historical research by virtue of s.25, and national security and defence pursuant to  s.26, s.27 and s.28.

Further Information
Anyone wishing to discuss this article or data protection generally should call me during office hours on +44 (0)20 7404 5252 or send me a message through my contact form.

Welcome to NIPC Data Protection

Jane Lambert

On 25 May 2018 the General Data Protection Regulation ("the GDPR") takes effect in every member state of the European Union including the United Kingdom. The position has been complicated in this country by last year's referendum on EU membership which means that the Regulation will cease to apply to the UK on the 29 March 2019 when we leave the EU unless there is evidence of a sufficient change of heart on the part of the public to persuade the government to change tack.

A fair size industry of consultants, publishers and conference organizers has grown up to prepare businesses for the introduction of this legislation. As Elizabeth Denham, our Information Commissioner has pointed out in GDPR – sorting the fact from the fiction 9 Aug 2017, there have been a lot of scare stories about the GDPR and not a little misinformation. There will be some changes as a result of the GDPR.  Data subjects will get new rights on 25 May 2018 and there will be increased sanctions for non-compliance. Those changes, however, are evolutionary rather than revolutionary. It should not be too difficult to prepare for them or to manage them.

Because it is a regulation rather than a directive, the GDPR does not require any implementing legislation.  However, there will be a new data protection statute for the United Kingdom for three reasons. The first is to transpose the Data Protection Law Enforcement Directive into the laws of the United Kingdom. The second is to confer rights on data subjects that are not provided by the GDPR such as the right to require social media platforms to delete information held on them at age 18. The third reason for the new Act is to preserve the provisions of the GDPR after Brexit day as I noted in
What will happen to the GDPR in the United Kingdom after Brexit? 10 Aug 2017 NIPC Brexit.

Like the Data Protection Directive which it replaces, the policy of the GDPR is to give effect to the Council of Europe Data Protection Convention and the OECD Guidelines on Transborder Data Flow having regard to changing technology and applying the experience of the operation of the Data Protection Directive. As before, the objectives are to facilitate transborder data flow while protecting the privacy and other interests of individuals

The Data Protection Law Enforcement Directive is new. It seeks to harmonize the use of information technology by law enforcement agencies throughout the member states. However, that legislation also traces its wellspring the Council of Europe's Data Protection Convention which itself applies the European Convention on Human Rights to data processing. Art 63 (1) of the Law Enforcement Directive requires member states to transpose it into national law by 6 May 2018.

Over the next few weeks I shall write about various aspects of the Law Enforcement Directive and the GDRP as the 6 and 25 May 2018 draw closer. I shall also write about the Data Protection Bill as it makes its way through Parliament. I have started with a glossary as the terminology used in the GDPR is different from that of the Data Protection Directive. In that endeavour, I hope to remove some of the hot air and panic about the new legislation.

Should anyone wish to discuss this article or data protection generally, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.