The Browns’ damage or distress

Paper files of medical records

Paper files of medical records

What would you do if you were approached by a newspaper that wished to publish an article about your child’s illness?  Assuming you do not have the resources to instruct lawyers specialising in privacy and data protection to consider obtaining an injunction, you could look at a little-known and rarely-exercised right in the Data Protection Act 1998.

Section 10(1) & (2) of the Data Protection Act 1998 states:

10  Right to prevent processing likely to cause damage or distress.

(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply—

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

In the scenario being dealt with here, none of the conditions in subsection (2) apply.  As this right is rarely exercised, even less made the subject of any court proceedings, there is no judicial interpretation of what is required to meet the “substantial” level or where the line may be drawn between warranted and “unwarranted” for section 10.  However, it is a cost-free approach to issue a section 10 notice.  As this is a fundamental right under the Act, any recipient data controller ignoring it risks court action, or more likely, enforcement action by the Information Commissioner following a complaint by a person issuing the notice that their rights were ignored.

Although the Information Commissioner’s guidance on when he would be minded to issue a monetary penalty is not completely clear on this point, it is at least arguable that any denial of a section 10 right would be a severe breach of the Data Protection Act.  As a severe breach, it could be the subject of a monetary penalty notice, which can include a fine of up to £500,000.  The risk of being subject to a £500,000 fine, as well as the reputational fall out for a newspaper, might be enough to make a publisher think twice.

There is also the question of the lawfulness of the newspaper publishing the story concerning an individual’s medical condition.  In short, the publication is not covered by any of the lawful purposes for which medical data (included in the definition of “sensitive personal data” in the Act) may be processed. The only conceivable lawful purpose is contained in a statutory instrument, the Data Protection (Processing of Sensitive Personal Data) Order 2000. In particular, paragraph 3 of the Schedule to the Order states:

3.  The disclosure of personal data –

(a) is in the substantial public interest;

(b) is in connection with –

(i) the commission by any person of any unlawful act (whether alleged or established),

(ii) dishonesty, malpractice, or other seriously improper conduct by, or the unfitness or incompetence of, any person (whether alleged or established), or

(iii) mismanagement in the administration of, or failures in services provided by, any body or association (whether alleged or established);

(c) is for the special purposes as defined in section 3 of the Act; and

(d) is made with a view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest.

It is difficult to make a convincing case that knowledge of a child’s medical condition is in the substantial public interest for paragraph 3(a). Only the case of Leo Blair and MMR comes to mind as a possible example.  That, however, leaves the other conditions in paragraph 3 unfilled for this to be a lawful purpose.

However, newspapers can seek to apply the exemption at section 32 of the Act for journalism, literature or art.  The newspaper would have to be clear that publication was in the public interest (section 32(3)) and within the scope of the Press  Complaints Code (a designated code for the purposes of section 32 under the Data Protection (Designated Codes of Practice) Order 2000 – it is an anomaly that the sensitive personal data Order described above imposes a “substantial public interest” test in connection with journalism (the “special purpose” in paragraph 3(c)), whereas section 32 does not).  Note paragraph 6(v) of the current edition of the PCC Code to Editors, and point 5 of the note on the public interest test to be applied in matters concerning children:

v)  Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

5.  In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Clearly, the section 32 exemption must be one being relied upon by News International in connection with the publication of Fraser Brown’s medical condition.  It is disappointing, but perhaps not surprising in the circumstances of the relationship between No 10 and News International in 2006, that no complaint was made about the Fraser Brown report that would have given the Information Commissioner’s Office or a court a chance to describe the limits of section 32, or to resolve the conflicting public interest tests in section 32 and the sensitive personal data Order.

If you consider that section 32 gives newspapers too much leeway, then note that the exemption does not cover section 13 of the Act.  In particular, section 13(2)(b) provides, in effect, that “an individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if… the contravention relates to the processing of personal data for the [purposes of journalism]”. It would therefore be the case that if the Information Commissioner, as a result of a complaint, or a court ruled that the newspaper had not published (sensitive) personal data in the public interest, then the individual concerned could sue the newspaper for distress. This would be in addition to any monetary penalty imposed by the Information Commissioner for the contravention.

To date only Naomi Campbell has obtained such distress damages (Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB), subsequently upheld by the House of Lords [2004] UKHL 22). Although not clearly identified as such, it would seem that these damages amounted to a modest £1,000, out of a total award of £3,500 damages under section 13 of the Act and for breach of confidentiality. The low level of these damages has itself probably deterred section 13 actions against newspapers.

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Nadine Dorries Press Statement: enforcement and remedy

ICO Data protection cases received and closed (source ICO)

In our previous post we reviewed in the context of yesterday’s personal statement to the press by Nadine Dorries MP, whether the publication of a person’s medical condition on a website could be unlawful under the Data Protection Act 1998 (the “DPA”). If our view that there has been a breach of the DPA is supported, what are the potential consequences for Nadine Dorries MP and what remedies are available to her partner’s wife (“W”), under the DPA?

Firstly, breach of a data protection principle is not of itself a criminal offence. Nothing Nadine Dorries has done appears to be within the scope of any of the criminal offences under the DPA. The disclosures she made in her blog are even within the scope of her notification properly made to the Information Commissioner’s Office (“notification” is the accurate term for the registration of a data controller’s processing purposes required under section 17 of the DPA). So any enforcement action taken by the Information Commissioner against the MP will not include prosecution at this stage.

Nadine Dorries could still be prosecuted if she fails to comply with an enforcement notice made by the Information Commissioner, but as the nature of any enforcement notice would be an order by the Information Commissioner not to breach the relevant data protection principle again, this is unlikely. However, the current practice of the Information Commissioner’s Office is to seek undertakings from breaching data controllers that they will remedy the breach and will behave lawfully in future. Whilst enforcement by enforcement notice is described in Part V of the DPA, this practice of undertakings is non-statutory. It appears that this use of undertakings makes criminal prosecution even more unlikely, as a breach of an undertaking would then lead to an enforcement notice, not directly to a prosecution.

However, the Information Commissioner does have the ability to impose monetary penalties of up to £500,000 for serious breaches of the DPA. All the elements that give the Information Commissioner the power under the DPA to impose a monetary penalties may be present in the Nadine Dorries case: there is a deliberate breach of the first data protection principle in circumstances that would cause W distress. The question is therefore whether the breach is “serious” or the distress “substantial” for the purposes of section 55A(1) of the DPA. As required by section 55C of the DPA, the Information Commissioner has published guidance on how it would determine whether a breach warrants action under section 55A (or 55B), but this does not give sufficient assistance to be able to conclude that Nadine Dorries would be given a notice of intent to impose a monetary penalty, were the Information Commissioner to investigate this case. However, the guidance does suggest that breaches that involve medical data and distress as a result of wrongful processing of medical data are more likely to be in the serious/substantial camp.

So if the Information Commissioner takes no action, what direct remedy does W have under the DPA? It is recognised by privacy advocates that the DPA provides limited remedies to individuals. The only remedy they have for past breaches, which requires court action, is a right to compensation for damage under section 13 of the DPA. In almost all cases, this must be actual damage (i.e. recovery of costs, losses or expenses suffered or incurred as a result of the DPA breach) rather than distress. Damages for distress alone are only possible in a limited set of circumstances, which do not apply to this Nadine Dorries case unless it can be argued that the issue of a personal press statement was for the “purposes of journalism” (section 3(1) of the DPA). There is no case law on what this phrase means.  In addition, there is no recital in the Data Protection Directive 95/46/EC that gives any assistance on what this provision was intended to cover.  Therefore in our opinion it would be a brave claimant that would try to obtain damages for distress under the DPA by claiming that the issue of a statement on a blog was caught by what the DPA calls this “special purpose”.

This leads to the uncomfortable conclusion that W may have no direct DPA remedy herself, and must rely on the Information Commissioner to take action to give her some redress for the distress she may have suffered as a result of details of her alcoholism being published in breach of the DPA.  However, the development of a right to privacy under cases such as Max Mosely v News of the World [2008] EWHC 1777 (QB) or Naomi Campbell v Mirror Group Newspapers [2004] UKHL 22 show that a privacy remedy made be available as a result of judicial intervention where no statutory remedy under the DPA is provided.