The Weekly Round-up: Hong Kong, data privacy, and pensions equality

7 October 2019 by Rosalind English

Sam Sykes and Conor Monighan provide the latest updates in human rights law

In the news

This week marked the 70^th anniversary of the Community Party’s rule in China. In Hong Kong, there were violent protests and clashes with the police. The unrest which began in the wake of the controversial extradition bill introduced 4 months ago has developed into a wider movement for democracy, and there is no resolution in sight. The situation has caused damage to buildings and transportation infrastructure, and serious injuries: this week, an 18-year-old was shot in the chest – police say that he is now recovering.

Carrie Lam, the Chief Executive of Hong Kong, invoked the Emergency Powers Ordinance to try and create order. It is the first time in 50 years that such regulations have been created. The regulations ban people from wearing face masks, which protesters use to protect themselves from tear gas, and also to preserve their anonymity. Although many have ignored the rule, the Hong Kong authorities are now bringing the first charges under the new law.  

Meanwhile, Brexit uncertainty continues. Joanna Cherry and her fellow MPs, fresh from the success of their legal challenge to the government’s attempt to prorogue, have begun preparations for a legal challenge if the government refuse to comply with the Benn law, which requires the Prime Minister to request an extension to Article 50. The government’s written response to the claim indicates that it will obey the law and request an extension, but government ministers, and the Prime Minister himself, continue to suggest they may have a way around it.

A range of other important challenges are being brought against the government and public authorities.

• Data sharing between the police and the immigration authorities is facing fresh legal action, after the police’s policy was redrafted and republished in August 2019 following a judicial review brought by Liberty. The new complaint will supplement an ongoing ‘super-complaint’ on data sharing investigated by HM Inspectorate of Constabulary, the Independent Office for Police Conduct, and the College of Policing. More from the Guardian here.
• The Home Office is facing judicial review over its policy of inviting foreign government representatives to interview asylum-seekers. More from the Independent here.
• The Home Office has also faced criticism this week over failings in the application of its system to remove old convictions for offences of homosexuality. It has been reported that only about 30% of applications are proving successful. More from the Guardian here.

In other legal developments in the UK, Scotland has become the first country in the UK to introduce a ‘smacking ban’. By removing the defence of ‘justifiable assault’, the Scottish Parliament has made it a criminal offence to apply force to a child. The move has been criticised by the Scottish Conservatives, but was strongly supported by the Association of Educational Psychologists. A similar bill is working its way through the Welsh Assembly.  

Outside the UK, the jurisdictional problem of the internet has been a prominent topic. The CJEU ruled this week in Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited that member states may legitimately make worldwide takedown orders against online platforms, where this relates to posts that are ‘equivalent or identical’ to content found to be illegal. The ruling comes in an online defamation case brought by an Austrian Green Party politician against Facebook. This poses an interesting counterpoint to the ruling last week in Case C-507/17 Google v CNIL, where the CJEU held that Google is not required to apply the ‘right to be forgotten’ on all its domains, as its underlying data protection obligations only apply within the EU.  

In other news

• The Duke and Duchess of Sussex have begun legal action against a number of newspapers. On Wednesday, it was announced that action was being taken against the Mail on Sunday, following the paper’s publication of a handwritten letter from Meghan Markle to her father. A claim was issued alleging misuse of private information, copyright infringement and breach of the Data Protection Act 2018. In a strongly-worded statement, Prince Harry stated “I lost my mother and now I watch my wife falling victim to the same powerful forces”. A number of legal commentators remarked on the choice of Schillings as solicitors for the Royal Couple, as the firm is known for their ‘aggressive’ approach. On Friday, Prince Harry took matters further by launching legal action against News Group Newspapers and the Daily Mirror over alleged phone hacking. More from Inforrm’s Blog here.
• The BBC has reversed its decision to partially uphold a complaint made against Naga Munchetty, the BBC Breakfast presenter. The issue arose in the wake of a tweet issued by President Trump, in which he asked why four US senators don’t “go back and help fix the totally broken and crime infested places from which they came”. On the 17^th July, Ms Munchetty stated “Every time I have been told, as a woman of colour, to go back to where I came from, that was embedded in racism”. A complaint was partially upheld on the basis that Ms Munchetty should not have given her “opinions about the individual making the remarks or their motives for doing so – in this case President Trump”. However, Lord Hall (BBC Director General) later overturned the ruling. He stated that “racism is racism and the BBC is not impartial on the topic”. A number of individuals, including Sir Lenny Henry, had previously written an open letter criticising the original ruling. More from the Guardian here.
• Sir Richard Henriques’s highly critical report into Operation Midland was published. Operation Midland started after a man called Carl Beech (known as ‘Nick’) told the police he was the victim of a VIP paedophile ring. As a result of the allegations, police interviewed and searched the homes of Lord Bramall, Harvey Proctor and Lord Brittan. Notoriously, the police held a press conference in which one officer wrongly described Beech’s claims as “credible and true”. Sir Henriques’s review found that the officers had decided to use this language prior to the conference. That finding puts pressure on Cressida Dick, head of the Metropolitan Police, who previously suggested that the phrase was merely a “mistake” caused by the pressure of media attention. The review also found that the house searches conducted by officers were unlawful. A report by the Independent Office of Police Conduct will be published next week. The Home Secretary has ordered another review. More from the BBC here.
• The High Court has released its judgement in the case of Tafida Raqeeb, a child who suffered severe brain damage. MacDonald J held that it was in her best interests for treatment to continue, and granted permission for her to be sent to Italy for this purpose. The judgement is available here.

In the courts:

• Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor: this was a challenge by two activist privacy NGOs to the ‘immigration exemption’ for data protection under para 4 Sch 2 DPA 2018, by which data protection obligations may be limited on the basis of ‘effective immigration control’ (used in approx. 60% of responses to Subject Access Requests to the Home Office). The claim was brought on the basis that it was (i) contrary to Article 23 GDPR, (ii) incompatible with privacy and data protection rights under Articles 7-8 of the EU Charter, and (iii) discriminatory. Supperstone J upheld the exemption. In his judgement, the exemption was not unlawful merely on the basis of the risk of disproportionate interference. The scope was clear enough, and the exemption was implicitly subject to the Article 23 test of necessity and proportionality. Further, the enforcement mechanisms under present law – the Information Commissioner, First-tier Tribunal, and ordinary courts – constituted a system of safeguarding to provide a legal remedy and judicial protection. There was therefore no need for the ICO to publish guidance on the application of the exemption.
• Delve & Anor v SSWP: this was a challenge to legislative measures to equalise the pension age for men and women, brought by a group of women born in the 1950s. The claim was brought under three heads: (i) direct age discrimination, (ii) indirect sex discrimination, and (iii) breach of legitimate expectations and/or the minimum requirements of fairness under common law. The judges rejected the claim on all counts.  The discrimination claims could not succeed as a matter of EU law, because pensions were not ‘pay’, and therefore not within the scope of the relevant EU law provisions. They also could not succeed under the law of the ECtHR, because the underlying motivations were macro-economic and political, and the measures therefore did not meet the Article 14 ECHR threshold of being ‘manifestly without reasonable foundation’. Further, a removal of ‘discriminatory mitigation’ (lower pension age for women having been introduced in 1940 as a form of positive discrimination) could not itself constitute discrimination. Finally, there was no legitimate expectation not to have the law changed, nor a legal requirement to notify people that they will be affected by changes to primary legislation.
• Lloyd v Google LLC: Richard Lloyd, a consumer protection champion, brought a case against Google for acquiring browser-generated information from Apple iPhone users without their consent, via the ‘Safari workaround’. The case had been dismissed by Warby J on the basis that (i) none of the applicants had suffered ‘damage’ under s.13 DPA 1998; (ii) the members of the class did not have the ‘same interest’ under CPR; and (iii) it was appropriate to exercise his discretion to refuse the claim. In overruling his decision, the Court of Appeal concluded that (i) ‘damage’ in a data protection context included non-pecuniary loss, by analogy with misuse of private information in the phone-hacking case of Gulati v MGN; and (ii) the class had the same interest in light of the court’s conclusion that loss of control of data constituted damage in itself. The court therefore exercised its discretion to allow the representative action. The judges were clear that they considered any award under this case to be of compensatory, notexemplary or vindicatory damages. For more detail, see Rosalind English’s analysis here.
• GM (Sri Lanka) v SSHD: the appellant was a Sri Lankan national bringing a human rights claim against a decision to refuse her leave to remain, even when her husband and children were subsequently granted indefinite leave to remain. Applying the leading Supreme Court authorities on Article 80 (KO, Rhuppiah, Agyarko, Ali), the court emphasised that (i) the interests of the children were paramount; (ii) the relevant question was where (both) parents were expected to be, as it was generally reasonable for the children to reside with them; (iii) relationships and family life would only be ‘of little weight’ under s.117B NIAA 2002 if they were created during a period of unlawful residence, not of merely precarious residence; and (iv) the key question is whether the parties began family life knowing that they were in a precarious position. In light of these considerations, the court directed the Home Secretary to reconsider the appellant’s Article 8 claim.  

On the UKHRB

• Rosalind English has written an article about Lloyd v Google LLC, which concerns the ability to sue for loss of control of data.
• Jeremy Hyam considered the implications of Labour’s plans to abolish private schools for human rights.
• Charlotte Gilmartin explained TT, R(on the application of) v The Registrar General for England and Wales, which related to the legal definition of a ‘mother’. In the latest episode of Law Pod UK, Charlotte discusses this case with Rosalind English.
• On Law Pod UK, Emma-Louise Fenelon discusses the Supreme Court’s ruling on prorogation. Jonathan Metzer published an article summarising the judgment here.