privacy
18 September 2013 by Rosalind English
R (on the application of) Christopher Prothero v Secretary of State for the Home Department [2013] EWHC 2830 (Admin) 18 September 2013 – read judgment
This was a challenge to regulations introduced in 2012 under the Sexual Offences Act 2003 which require a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. The claimant sought a declaration that this particular regulation was incompatible with his right to respect for private life under Article 8 of the European Convention on Human Rights.
The last time the notification requirements under the 2003 Act came under attack, the Supreme court held that they were capable of causing significant interference with the Article 8 rights of an offender on the register (R (F)(a Child)) v The Secretary of State for the Home Department [2010] UKSC 17) – see our post on that case and its consequences.
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1 July 2013 by Rosalind English
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
All of these questions are new to the Court.
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30 January 2013 by Rosalind English
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice [2013] EWCA Civ 25 – read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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5 December 2012 by Rosalind English
Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD [2012] ECHR 2012 (04 December 2012)
Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.
Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that Mr Küchl was engaging in homosexual relations with the seminarians. One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph. The article was entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
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29 October 2012 by Rosalind English
X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 (Admin)- read judgment
The High Court has made an important ruling about the disclosure of information under the Child Sex Offender Disclosure Scheme (CSOD).
This non statutory arrangement has been in place since March 2010. It allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The aim of the scheme is described thus:
This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.
Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.
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18 October 2012 by Rosalind English
I have posted previously on the logistical difficulties in legislating against genetic discrimination.
The prospect that genetic information not only affects insurance and employment opportunities is alarming enough. But it has many other implications: it could be used to deny financial backing or loan approval, educational opportunities, sports eligibility, military accession, or adoption eligibility. At the moment, the number of documented cases of discrimination on the basis of genetic test results is small. This is probably due to the relatively few conditions for which there are currently definitive genetic tests, coupled with the expense and difficulty of conducting these tests. But genetic discrimination is a time bomb waiting to be triggered and the implications of whole genome sequencing (WGS) are considered in a very interesting and readable report by the US Presidential Commission for the Study of Bioethical Issues Privacy and Progress in Whole Genome Sequencing.
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26 September 2012 by Maria Roche
Attitudes changing, slowly
DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment
The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.
It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life. The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.
This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.
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15 April 2012 by Isabel McArdle
Balogun v UK [2012] ECHR 614 – Read judgment
It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.
The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.
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2 October 2011 by Guest Contributor
Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment
In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.
The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant. It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.
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12 July 2011 by Adam Wagner
2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.
First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.
As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.
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24 May 2011 by Rosalind English
We reported last week the Supreme Court ruling in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent) in which the majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR.
Not only that; the Court concluded that such a reading could still promote the statutory purposes: ” Those purposes can be achieved by a proportionate scheme.”
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23 May 2011 by Adam Wagner
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
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25 April 2011 by Guest Contributor
OPQ v BJM [2011] EWHC 1059 (QB – Read judgment
The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
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22 April 2011 by Adam Wagner
When the prime minister criticises judges, he tends to speak from his gut. The prospect of prisoners being given the vote by European judges makes him feel “physically sick”. And now, he is “a little uneasy” about the rise of “a sort of privacy law without Parliament saying so“.
David Cameron’s use of visceral language may reflect what many in the general public (as well as PR man Max Clifford) are feeling about the issue of wide-ranging injunctions granted by courts, seemingly all the time, to prevent salacious details of celebrities’ private lives being revealed. The latest involves a former big brother contestant’s alleged affair with a married Premier League footballer.
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19 April 2011 by Isabel McArdle
H and L v A City Council [2011] EWCA Civ 403 – Read judgment
In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair.
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R (on the application of) Christopher Prothero v Secretary of State for the Home Department [2013] EWHC 2830 (Admin) 18 September 2013 – read judgment
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