The freephone and local rate calls battle – who’s lost?

2G and 3G masts on a mobile base station

The war between fixed network operators and mobile network operators is a central feature of most mature electronic communications markets, where few operators provide both fixed and mobile networks and services. The UK is no exception.

In the UK the most recent battle in this ongoing war has been in the freephone and local rate calls markets, known by the number prefixes used for the relevant number ranges of 080 (freephone) and 0845/0870 (local call or reduced call rate). In their bid to win customers from each other and reduce their own loss of customers, ie to reduce their churn rate, mobile network operators (MNOs) or their wholesale customers, the mobile virtual network operators (MVNOs) have developed a bewildering array of tariffs. These usually involve a range of bundles for minutes of calls, numbers of text messages and data rates for mobile broadband. A key part of these bundle offerings is the careful selection of which types of calls are included within the minutes permitted in any bundle. In most cases, the MNOs or MVNOs exclude calls to 080 or 0845/0870 numbers (the 08 Calls), perhaps because these calls are almost universally made to fixed network operators’ (FNOs) customers.

As a consequence, MNO and MVNO customers rarely know how much they are being charged to make these 08 Calls (see OFCOM’s Simplifying Non-Geographic Numbers consultation paper of 16 December 2010). The tariffs are not key differentiators or even factors customers consider when selecting an MNO or MVNO. As a result, there is little or no competitive pressure on MNOs and MVNOs for the 08 Calls. It is therefore not surprising that the tariffs charged for these calls can far exceed the network costs to the MNOs of setting up the calls (originating them) and handing them over to the FNOs to route to the called party (or to terminate them). FNOs, on the other hand, as terminating operators, have a monopoly on the market for terminating calls on their networks. Competition law can therefore ensure that the charges the FNOs make to MNOs to terminate the 08 Calls are not abusive, but are fair and non-discriminatory. Consequently, FNOs have long been aggrieved that the majority of revenue generated by for 08 Calls has been retained by the MNOs (and MVNOs).

British Telecommunications plc (BT) was the first to try to change their charges for terminating 080 Calls to get an increased share of this 080 Calls revenue. It was obvious that any change would be opposed by the MNOs. So when BT sought to change their terminating charges by use of Network Charge Change Notices (NCCN), these were disputed by the MNOs.  When these disputes could not be resolved, they were referred by the MNOs to the Office of Communications (OFCOM) for resolution using its statutory dispute resolution powers (see sections 185 to 191 of the Communications Act 2003).

OFCOM issued two determinations in respect of disputes between BT and various MNOs regarding BT’s termination charges and its relevant NCCNs:

• the first dealing with 080 calls on 5 February 2010 – the MNOs concerned being T-Mobile UK Limited (T-Mobile), Orange Personal Communications Services Limited (Orange), Vodafone Limited (Vodafone) and Telefónica O2 UK Limited (O2); and
• the second dealing with 0845 and 0870 calls on 10 August 2010 – the MNOs concerned being Vodafone, T-Mobile, Hutchison 3G UK Limited (H3G), O2, Orange and Everything Everywhere Limited (EE). EE is a 50%-50% joint venture between France Telecom and Deutsche Telekom, which was formed from the combination of their UK subsidiaries Orange and T-Mobile, who operated under the name of EE as a single entity from 1 July 2010.

In each determination OFCOM set out a number of near-identical principles, which it used to assess whether BT’s proposed termination charges were “fair and reasonable”. OFCOM considered that BT’s new charges were not fair and reasonable, as in each determination certain of these principles were not met.  BT was therefore not entitled to introduce the proposed tariffs.

BT appealed OFCOM’s determinations on both the 080 and the 0845/0870 disputes. BT had no fundamental dispute with the principles used by OFCOM to determine whether the proposed tariffs were fair and reasonable; it merely believed that OFCOM had misapplied its own principles.

EE also appealed OFCOM’s 0845/0870 determination.  It’s primary appeal ground was that OFCOM’s principles had failed to address an even more fundamental principle, that BT’s proposed tariffs should be cost-orientated or “cost reflective”. As they were not, they were unlawful. EE’s secondary position was that if OFCOM’s principles for determining the fairness and reasonableness of BT’s tariffs were upheld on appeal, then they had been correctly applied and OFCOM’s conclusions ought also to be upheld.

The Competition Appeal Tribunal (CAT) has recently published its decision in the joined appeals ([2011] CAT 24, 1 August 2011). The CAT had to decide if BT was entitled to impose its proposed tariffs. To do so, the CAT:

• reviewed OFCOM’s approach to resolve the tariff disputes, including OFCOM’s setting of its three cumulative principles according to which the fairness and reasonableness of BT’s tariffs were to be judged and their application to the facts;
• considered whether OFCOM correctly complied with its dispute resolution powers and the process set out in the Communications Act 2003; and
• considered what criteria the CAT must itself apply when hearing appeals of OFCOM’s determinations of disputes.

In a lengthy but well-structured judgement, the CAT had no argument with the principles adopted by OFCOM to resolve the 080 Calls’ tariffs disputes.  It found that Principle 1 (that MNOs should not be denied the opportunity in any tariff structure to recover their efficient originating costs for the calls) was satisfied. The CAT also considered that Principle 3 (that the proposed tariff structure was reasonably practical to implement) was also satisfied.

This left Principle 2, which was made up of several parts.  Principle 2(i) concerned whether the proposed tariffs had benefits to consumers. Principle 2(ii) concerned whether the tariffs avoided material distortion of competition. The CAT did not see how these were cumulative principles so that if either one failed, a new tariff could not take effect. Most importantly for future developments in the electronic communications market and its regulation, the CAT considered that OFCOM had failed to take into account a third factor: the contractual rights of BT.

The CAT believed that Principle 2(ii) concerning distortion of competition was satisfied; the imposition of a “stringent test for the introduction of price changes” by BT itself had the effect of distorting competition by placing a restraint on BT and other operators who wishes to impose similar laddered pricing structures. On Principle 2(i), the CAT did not say that it found the proposed tariffs to be beneficial to consumers; it considered that the outcome was inconclusive. However, it did criticise OFCOM for failing to take into account BT’s relevant market share in the call-hosting market, which, being limited, would dilute the impact of BT’s proposed tariffs. The CAT did not consider that the correct test was that the new tariffs had to be shown to benefit consumers, as this placed undue importance upon OFCOM’s own policy preference over Principle 2(i) and BT’s contractual rights. Instead, this policy preference could only have overridden the other factors OFCOM considered if it could have been clearly and distinctly demonstrated that the new tariffs would act as a material disbenefit to consumers.  An inconclusive finding by OFCOM was not enough to override BT’s contractual rights.

The CAT has therefore recognised the importance of freedom of contract in the promotion of competition. As an aside, this is exactly the argument put forward by Cable & Wireless, as an intervener and FNO in support of BT (see the closing arguments of Daniel Beard QC).

So who lost? This is a difficult question, but on one level the losers may be mobile phone customers. Clearly the MNOs were making healthy profits on their 080 Calls, using this additional revenue to cross-subsidise their bundle packages. These bundles may now reflect more their underlying costs, or in EE’s words, be “cost-reflective”, as more of the 080 Calls revenue is shared with FNOs.

As an aside, it became clear during the dispute from OFCOM’s draft determinations that a retail price of 12.5ppm was a rate that permitted MNOs on average to recover their efficient costs of originating calls to FNOs, both for 080 Calls and to geographic numbers. This rate is therefore is a useful benchmark with which consumers can check the tariffs being offered to them by MNOs and MVNOs.

[Disclaimer: I led the Charles Russell LLP team that acted for Cable & Wireless in the CAT. All information in this post is, as far as I am aware, available in the public domain. Any views expressed here are strictly my own and not those of Charles Russell LLP or Cable & Wireless.]

Will the “Empire” triumph in the end?

In an earlier blog – Help me, Obi Wan Jacobi, you’re my only hope – I described Andrew Ainsworth’s battle with Lucasfilm Limited and others concerning the iconic Imperial stormtrooper helmets and uniforms made by him and his company, Shepperton Design Studios Limited, in England.  He had kept the moulds for the plastic parts made for the original Star Wars film.  In 2004 he began selling stormtrooper helmets, including helmets to a value of approximately $14,500 to some US customers.

Lucasfilm Limited and the associated rights holders (together,“Lucasfilm”) succeeded in an action against Ainsworth in a District Court in California, being awarded $5m damages for copyright infringement, $5m for trade mark infringement and unfair competition, together with an additional $10m compensatory damages.  Lucasfilm sought to have the US judgement enforced in the UK, as well as bringing a UK copyright infringement action.  Lucasfilm largely failed in both the High Court and Court of Appeal, but appealed further to the Supreme Court. The Supreme Court handed down its judgment on 27 July 2011 (Lucasfilm Limited and others v Ainsworth and another [2011] UKSC 39).

By the time the case reached the Supreme Court, the issues had narrowed down to whether the helmets could be considered to be sculptures and the justiciability of the US copyright infringement claim (ie could Lucasfilm bring the US infringement case before the English courts, as Andrew Ainsworth is domiciled in England).

The High Court and Court of Appeal had decided that the helmets were not sculptures.  As a result, copyright protection of the drawings of the helmet in which Lucasfilm held the copyright would only be for a period of 15 years from the first marketing of reproductions, a period that had expired.  If the helmets were sculptures, then the copyright in it would have been protected for 70 years from the death of the author/sculptor, a period that was still running, meaning the Lucasfilm would have a valid UK infringement case.

The Court of Appeal had considered that Lucasfilm could not enforce US copyright in the UK, determining that foreign, non-EU (or Lugano Convention) copyrights are non-justiciable in England and that the application of forum non conveniens did not apply to international copyright cases.  In doing so it had overturned the High Court decision.

The Supreme Court unanimously upheld the Court of Appeal’s view that the helmets were not sculptures but ruled that the US copyright claims were justiciable in English courts.

On the sculptures point, the Supreme Court carried out a detailed review of the legislative history of the current statutory provisions and previous authorities on the meaning of “sculpture” before coming to its decision.

On the question of justiciability of foreign copyright claims, the Supreme Court concluded after a careful consideration of common law on jurisdiction, that where there is a basis for in personam jurisdiction over a defendant, an English court does have jurisdiction to try a claim for infringement of copyright.  What will be of interest to copyright lawyers now, is upon what basis will an English court award damages?  Clearly an award in an English court on a US measure of damages would be a major development.

It is tempting in a law blog to describe in detail how the Supreme Court came to its conclusions, but in a welcome sign of the Supreme Court’s new approach to its role, not only is the full judgment relatively short, but the court also published a summary – no longer will law students or court reporters need to prepare case head notes for Supreme Court decisions.  I recommend that if you are interested in the case, read the Supreme Court’s press summary.

Can Cameron stop social media?

Egypt Internet Blackout (© Arbor Networks)

This excellent graphic from Arbor Networks shows how Internet traffic to and from Egypt fell off a cliff between 27 and 28 January 2011.  At about the same time mobile phone operators in Egypt reported that they were required to close down their networks in certain areas of the country.

On Thursday, 11 August 2011 David Cameron made a lengthy statement in the House of Commons to open the parliamentary debate on public order, following extenisve rioting in London and other English cities.  Notably, he said:

Everyone watching these horrific actions will be struck by how they were organised via social media. Free flow of information can be used for good, but it can also be used for ill, so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.

Could the UK Government follow Egypt and order an Internet blackout and mobile phone network shutdown, or at least block access via Internet (including by mobile phone) to social media platforms?

Internet Blackout

The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down or restrict access to the Internet, at least by ordering UK-based communications providers to close or restrict access to any international gateways.  Section 132 begins:

132 Powers to require suspension or restriction of a provider’s entitlement

(1)  If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a)  to protect the public from any threat to public safety or public health, or

(b)  in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2)  OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3)  A direction under this section is—

(a)  a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b)  a direction that that entitlement is restricted in the respects set out in the direction.

Whilst the word “reasonable” gives any affected communications provider the hope that a capricious direction of the Secretary of State could be reined in by an urgent judicial review, what amounts to a critical threat to public safety or, especially, national security is not a judgement a court is likely to wish to overturn.  In any event, section 132 can itself be considered unnecessary in the light of Part 2 of the Civil Contingencies Act 2004.

This part of the 2004 Act replaced the Emergency Powers Act 1920.  It is highly recommended reading for any conspiracy theorist or anyone deeply cynical about the ability of politicians to act reasonably and sensibly in the event of any serious emergency affecting the UK.  In summary, the 2004 Act gives the Executive extraordinary powers to make emergency regulations.  Providing by regulation that internet service providers must deny access to international gateways or particular websites or servers could easily be achieved.

Mobile Phone Network Shutdown

The Secretary of State would not even need to consider making emergency regulations under the 2004 Act in order to shut down mobile phone networks.  A direction made under Section 132 of the Communications Act 2003 would suffice.  Each of the mobile phone operators has in their Wireless Telegraphy Act licences a provision in the same or substantially the same form as the following:

Ofcom may in the event of a national or local state of emergency being declared require the Radio Equipment to be modified or restricted in use, or temporarily or permanently closed down either immediately or on the expiry of such period as Ofcom may specify. Ofcom shall exercise this power by a written notice served on the Licensee or by a general notice applicable to holders of this class of Licence. (See Ofcom’s Template 2G Licence.)

So once Ofcom got the direction from the Secretary of State, it would have to do the dirty work and order the mobile phone operators to close down their networks.

Interception of Social Media

From David Cameron’s statement quoted above, it would appear that the Government’s thinking is that social media networks would be closed down when it was suspected or known that “violence, disorder and criminality” was being plotted.  This implies that there will need to be monitoring of these networks.  The problems in carrying out this monitoring are technical, not legal.  All that would be required legally is an interception warrant made under section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA):

5  Interception with a warrant

(1)  Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—

(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;

(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;

(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;

(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.

(2) The Secretary of State shall not issue an interception warrant unless he believes—

(a) that the warrant is necessary on grounds falling within subsection (3); and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime;

(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or

(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.

(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.

(6) The conduct authorised by an interception warrant shall be taken to include—

(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;

(b) conduct for obtaining related communications data; and

(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.

This looks like a very broad power to me.  However, the media stories about the London riots have focussed on the alleged widespread use of BlackBerry Messenger.  This is a secure closed network.  Would this mean the plots on BlackBerry would not come to the notice of criminal intelligence officers?  As has been demonstrated in the Middle East, Research in Motion can come to an accommodation with national security authorities that meets their eavesdropping requirements.  If Research in Motion did not want to cooperate, then arguably there exists a robust regime in Part III of RIPA that would enable investigatory authorities to obtain the necessary codes, particularly as the grounds set out in section 49 for the requirement to release keys are essentially the same as in section 5 for interception.

Human Rights?

What about human rights, you might ask?  Article 10 of the European Convention on Human Rights is supposed to grant a right to freedom of expression, isn’t it? However, as even Wikipedia’s Article 10 page helpfully points out, this is not an unqualified right.  Where in accordance with the law (see above) and necessary in a democratic society, the right can be restricted.

So, although the steps outlined by the Prime Minister in the House of Commons debate seem an extreme response to rioting, the legal tools are already in place to enable the UK Government to do exactly what the Prime Minister has proposed.

Ofcom’s Sitefinder reprieved?

Ofcom Sitefinder (click to visit)

Sitefinder is a web-based services that allows anyone to search any location or postcode in the UK to discover the location of any nearby mobile phone base station, together with details of the station’s operator, operating frequencies and maximum transmitter power (e.i.r.p. per channel).

Sitefinder was the subject of a request for information under the Environmental Information Regulations 2004 (“EIRs”) to Ofcom, which was refused. The applicant for the information then made an appeal to Ofcom for an internal review, who upheld the initial decision to refuse the request. The applicant then appealed to the Information Commissioner, who was minded to order the disclosure of the relevant information (Case Ref: FER0072933, 11 September 2006). This was then appealed to the Information Tribunal (now known as the First-Tier Tribunal (Information Rights)), who also ordered disclosure (EA/2006/0078, 4 September 2007). Ofcom appealed to the High Court, where the appeal was dismissed ([2008] EWHC 1445 (Admin), 8 April 2008), then to the Court of Appeal ([2009] EWCA Civ 90, 20 February 2009) and the Supreme Court ([2010] UKSC 3, 27 January 2010), who referred a question to the Court of Justice of the European Union (“CJEU”) (Case C-71/10). On 10 March 2011 Advocate General Kokott gave her opinion.  Finally, the CJEU has given its decision ([2011] EUECJ C-71/10, 28 July 2011), which should lead to the case being closed.

Initial Request and Internal Review

The EIRs provide for wider access to information that falls within the wide definition of environmental information included in the EIRs, than the Freedom of Information Act 2000 (“FOIA”) permits.  Consequently, the information request made by an information officer from Health Protection Scotland on 11 January 2005 requesting national datasets of the full details of each mobile phone base station within the Sitefinder database under the FOIA, was correctly processed by Ofcom (being a request for information on factors such as radiation – EIRs, reg.2.1(b)) under the EIRs.  The request was made because Sitefinder itself only permits users to research details within postcode areas, with no national or regional lists or exact details of base station grid references.

As a result of the initial request and request for internal review dated 25 February 2005, a number of exemptions under EIRs came into play, particularly:

• the public safety and national security exemption at reg.12(5)(a) – the public interest in safeguarding the location of all TETRA sites, and hence all police and emergency services communications, outweighed any public interest in disclosure of the sites’ data; and;

• the intellectual property rights (‘IPRs’) exemption at reg.12(5)(c) – disclosure would affect the rights of the network operators. The raw national dataset could be used by competitors to discover the design of each mobile network.  The IPRs in question were:
  • the operators’ database right in the Sitefinder database (applying the ruling in CJEU Case C-203/2 British Horseracing Board –v- William Hill, the Commissioner agreed that operators had made the necessary “substantial investment in obtaining, verifying or presenting the contents of the database” (Copyright and Rights in Databases Regulations 1997, reg 13(1)) to create a database right – Ofcom estimated that each operator took up to 50 man hours every 3 months to collate information for Sitefinder as well as 3-5 man-days per month to attend and contribute to Sitefinder policy and development groups);
  • copyright in the operators’ data; and
  • an obligation of confidence (the World Intellectual Property Organisation Convention 1967, Art. 2(viii), includes “rights relating to…works …protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields” – the Commissioner did not find that the appropriate obligation of confidence existed in the data supplied by the operators).

Appeal to Information Commissioner

The case was appealed to the Information Commissioner on 22 April 2005. The Commissioner considered the application by Ofcom of the EIRs, reg.12(5) exemptions, carefully applying his Awareness Guidance No. 20, which details how the Commissioner considers the adverse affect test for EIRs, re.12(5) should operate. Essentially, this is a harm test. The Guidance states: “the adverse affect test provides exceptions only in those cases where an adverse affect would arise. In other words, so far as environmental information is concerned, in order to engage an exception, some harm must be certain rather than merely likely. This is a significant difference.”  As Ofcom did not present the Commissioner with evidence of harm to public safety or national security, or the operators’ IPRs, disclosure was ordered.

In coming to this view, the Commissioner took account of the balance of interests under EIRs’ cases: Recital 16 of the EU Directive on public access to environmental information (Council Directive 2003/4/EC), upon which the EIRs are based, states that exceptions must “be interpreted in a restrictive way”. It was quite possible for Ofcom to disclose the requested information subject to the operators’ database rights and copyright, so that the requester could not use the disclosed database. A public authority cannot prejudge use of disclosed environmental information. The EIRs, as with the FOIA, do not require a requester to state the purpose of the request.  For both copyright and database right, it was ruled that use of the disclosed database by the requester would require a licence from the operators, which by implication they could refuse to grant.

Appeal to Information Tribunal

Ofcom appealed to the Information Tribunal on 10 October 2006, and T-Mobile was permitted by the Tribunal to be joined to the appeal on 29 November 2006.  The case before the Tribunal was a messy one – it was not simply an appeal of the Commissioner’s decision.  However, amongst other rulings, the Information Tribunal in considering the EIRs, reg.12(5)(b) public safety exception, did consider that there was a slightly increased risk that the disclosure of the site information requested, being more accurate than that already in the public domain, may adversely affect public safety. However, the Tribunal did not consider that this increased risk outweighed the public interest in the site information, given its importance as identified in the Stewart Report and for epidemiological investigations.

The Tribunal was also not convinced that the IPR exemption at EIRs, reg.12(5)(c) applied. The Tribunal decided that the exemption can only be applied if there is sufficient adverse effect to trigger the exemption, followed by a consideration of whether there the actual or potential harm in the disclosure is sufficiently great to outweigh the public interest in disclosure. The Tribunal considered that the test to find adverse effect should not be set with a particularly high threshold – the exemption could apply to any case where there was more than a mere technical or minimal infringement of the relevant IPR.  The Tribunal considered the degree of harm that disclosure of the Sitefinder dataset would cause. For example, it considered the potential loss of revenue claimed by the operators from their inability to license their site data and the adverse effect that the disclosure of the Sitefinder information would result in the implied disclosure of each operator’s network design.

In each case, the Tribunal was not convinced that there would be actual or potential harm under each of the headings submitted by Ofcom and T-Mobile, but considered that there was sufficient adverse effect from the combination of the various factors.

The Tribunal also considered a further public interest in withholding the Sitefinder data. The operators’ had warned Ofcom that as their supply of base station data was not a statutory requirement but was made by them voluntarily, they would refuse to supply any further data if the Tribunal ruled in favour of disclosure. There was clearly a public interest in maintaining Sitefinder. The Tribunal did not consider that it could base its decision on any actual or implied threat of future non-cooperation by the operators.

In addition, the Tribunal did not accept Ofcom’s view that the EIRs required it to consider whether the aggregate public interest in maintaining the exemptions outweighed the public interest in favour of disclosure.

Appeal to the Administrative Court

In the Administrative Court the question of how to apply the EIRs exemptions was considered. In essence, the Court reviewed whether a public authority should consider the public interest in disclosure outweighed the public interest in withholding the requested information for each separate exemption that could apply, and only if all exemptions resulted in the public interest in disclosure being outweighed should the information not be released. The contrary argument was that the public authority should consider the aggregate public interest, was dismissed by the Court. In reviewing the IPRs exemptions, the Administrative Court considered that the Tribunal could consider whether the use of the data to be disclosed (i.e. for epidemiological research) was in the public interest, even if that meant a breach of the operators’ rights. This was important as strictly a person requesting information under the EIRs or FOIA does not have to state a purpose (however, I have always advised applicants that the purpose should be stated, for exactly this reason – it colours the public interest test – see the chapter I have co-authored in the Law Society’s Freedom of Information Handbook).

Appeal to the Court of Appeal

The Court of Appeal reviewed the Administrative Court’s view on aggregation of public interest, and determined that the Administrative Court had erred in not following this approach. However, the Court of Appeal agreed that the purpose to which the data disclosed was to be put could be considered in any public interest test.

Supreme Court

The issue for the Supreme Court was therefore the same: how should a public authority apply more than one exemption? Is each exemption to be addressed separately, by considering whether the interest served by it is outweighed by the public interest in disclosure? Or can the interests served by different exemptions be combined and then weighed against the public interest in disclosure? The Supreme Court quickly realised that this involved discerning what was intended by Directive 2003/4/EC, and so made the following reference to the CJEU:

Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?

Advocate General Opinion

Julianne Kokott has carried out her usual thorough analysis, and has suggested to the CJEU that they answer:

Under Council Directive 2003/4/EC on public access to environmental information, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

Decision of the CJEU

Perhaps not surprisingly, the CJEU has followed the conclusion of the Advocate General. The judgement is short and to the point, so I will not repeat the analysis of Article 4(2) of Directive 2003/4/EC made by the CJEU to enable them to come to this conclusion (see the link above).

As a result of the decision, the matter will be referred back relatively quickly to the First-Tier Tribunal (Information Rights), where I expect the cumulation of exemption interests will be found to outweigh the public interest in disclosure, so that Sitefinder will be reprieved.