Weekly Notes: legal news from ICLR – 27 March 2015
Posted on 29th Mar 2015 in Weekly Notes
This week’s data packet of legal news and events from home and abroad includes Google whichever way you look at it – along with rights to privacy, access to justice, protection for children and vulnerable witnesses and compensation for misuse of information.
Public information and private data
Not open or shut, but ajar
(enough to let black spiders go on safari)
Three cases, two of them this last week, have demonstrated how the distinction between what is private data and what is public information is not a binary issue, but rather a continuum. The gateway to distribution is neither open nor closed, but ajar. Depending on the circumstances, and on the controllers (in the loosest sense of that word), information may be kept private or made public, or at any rate accessible to third parties. But what is also changing is the landscape of regulation, remedy and enforcement.
The most famous or notorious of these cases is Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12);  WLR (D) 202; (£)  QB 1022, decided by the European Court of Justice last May, which established that individuals could exercise against a search engine like Google a right to be “delisted” from internet search index results. This is what is meant by or encompassed in the concept of a “right to be forgotten”.
The ruling is more complex than that, because it also involved a finding that Google in Spain was established there for the purposes of European data protection law, and was a data controller (contrary to the opinion of the Advocate General). The practical consequence of the ruling was the Google was obliged to, and duly did, set up a mechanism to adjudicate claims by data subjects wishing to exercise their rights to be forgotten, or at least delisted from search results, if not globally at least within the jurisdictions covered by the court’s ruling. That process has itself given rise to further argument and controversy.
The Google Spain case was therefore an excellent subject for a one-day conference, held on 28 March at Cambridge University’s Faculty of Law, sponsored by Hogan Lovell, and featuring an impressive lineup of speakers. I aim to write about this in more detail in a separate post, but for now record that it covered a lot of ground and provoked some lively discussion.
Though its organisers cannot have planned it, the conference was brilliantly timed in that two major decisions affecting public and private data, one of them actually involving Google, happened to have been decided just before it, in one case on the same day.
The first of these was the so-called Black Spider Memos case, involving letters written by Prince Charles to ministers of the Crown, intended to be confidential, but thanks to a decision of the Supreme Court on 26 March, R (Evans) v Attorney General  UKSC 21, they may now be disclosed – in response to a freedom of information request by a Guardian journalist, Rob Evans.
In part the decision was about the relationship between the government, in the person of its law officer, the Attorney General, and the courts and judiciary, in the form of the Upper Tribunal, whose ruling on the FOI request the AG sought to veto. The reasons given for the exercise of the veto were insufficient to meet the stringency required by the Act, properly construed, under which it was sought to be exercised. But the decision also turned on an obscure (to many) point of European environmental protection law, since the BSMs from HRH to HMG also involved the environment. (Not just talking to plants. The whole damned garden, don’t you know.)
I am indebted to Carl Gardner, of the Head of Legal blog, for his excellent encapsulation of the decision in a blog post, The Prince Charles letters judgment – in a few sentences
When I observed, facetiously, on twitter, that this amounted to a “headnote, on Headnote of Legal” he responded, correctly, “sort of”. In fact, it’s much pithier than the average headnote these days, particularly with Supreme Court judgments, like this one, in which the various members of the court each give their own reasoning, some of it contradicting or varying from the others’. Trying to capture all the strands in a sort of Celtic knot holding in which the points of departure and arrival coincide can be a nightmare for the busy law reporter, especially as it is usually delivered in time for publication as a full WLR case report with 9 days of judgment, and often up on our website within a week.
There is a short, amusing, informative video on the Black Spider Memos published by the Guardian which also repoted the decision (a case of history written by the victors, if ever there was one) and editorialised it: The Guardian view on the black spider memos: a victory for the rule of law, a warning to Prince Charles
See also: Panopticon case comment, Why Evans gets the spiders
Secondly, on the very morning of the day of the conference, the Court of Appeal gave judgment in Vidal-Hall v Google  EWCA Civ 311 (affirming that of Tugendhat J  EWHC 13 (QB);  1 WLR 4155) permitting the service of a claim form out of the jurisdiction, on Google, a Delaware company, based in California, in a claim by three users of Apple’s Safari web browser, over Google’s alleged misuse of personal information gathered without their consent. The case turned on whether, if a tort was committed by Google, it caused “damage” of a kind which permitted the action to proceed. In the absence of economic loss, was it sufficient under the relevant rules of court that the damage caused was distress? The court held that it was, and that the claim could be heard in England.
Giving judgment the Master of the Rolls, Lord Dyson and Lady Justice Sharp said, at para 137:
On the face of it, these claims raise serious issues which merit a trial. They concern what is alleged to have been the secret and blanket tracking and collation of information, often of an extremely private nature, as specified in the confidential schedules, about and associated with the claimants’ internet use, and the subsequent use of that information for about nine months. The case relates to the anxiety and distress this intrusion upon autonomy has caused.
And so to Cambridge, where the conference was able to benefit from, inter alia, an analysis of the above case by Hugh Tomlinson QC, leading counsel for the claimants, and one of the invited speakers.
Also at the conference was Paul Bernal, an academic specialising in data law and privacy, who has written his account of the week’s events in Princes, Privacy and Power
- Panopticon case comment, Google and the DPA – RIP section 13(2)
- Information Rights and Wrongs, Vidal-Hall v Google, and the rise of data protection ambulance-chasing
Children – access to justice
Two recent reports have highlighted the issue of children’s access to justice.
The first is the Report of the Vulnerable Witnesses and Children Working Group, March 2015, set up last June by Sir James Munby, President of the Family Division, which makes a number of recommendations, including that children should become more familiar with the family justice system by visiting courts on open days. To what extent this would make the process less daunting if and when a child gets caught up in family justice proceedings, whether of a public law or private nature, seems questionable. This aspect of the report has been the subject of comment on the Transparency Project blog.
Among the matters discussed in the report is the idea of children meeting judges hearing cases in which they are concerned. The evidence suggests (para 22) that children want “to be included and listened to and to know that that was part of what happened in their case.” The problem is managing their expectations, since it is
“not part of the judicial function to evidence-gather [in these meetings] so the wishes and feelings expressed at the meeting cannot properly be taken into account when decision making. This is a difficult concept for any young person to grasp at best; and is misleading if it amounts to saying the judge is here to listen to you but cannot take any notice of what you say.” (para 24)
A fresh approach is, the report concludes, overdue. It recommends adopting an approach more akin to that taken in criminal proceedings.
In relation to vulnerable witnesses, the report suggests these should include intimidated witnesses, particularly in relation to domestic abuse, and that witnesses (and indeed litigants in person where appropriate) should be assessed for vulnerability at the start of proceedings, and that appropriate support be provided.
But here’s the rub: such support costs money. The report noted at para 12 the
“shocking and stark predicament facing parties who would be considered vulnerable witnesses but did not qualify for public funding”;
at para 14 that
The difficulties extend beyond the provision of support and assistance for vulnerable witnesses themselves encompassing the difficulties encountered when litigants in person seek to cross-examine witness who are often vulnerable and victims of abuse.”
And at para 20:
It is difficult to understand any argument that would suggest that intermediaries (like translators or interpreters) should not be present when necessary for the purposes of meeting with professionals, particularly legal representatives out of court and during the preparation of the vulnerable party’s case. The position of funding, which is dealt with on an ad hoc basis, is unsatisfactory. If access to justice for vulnerable parties is not to be denied it is a matter which requires urgent review and clarification. (Emphasis added)
This segues nicely into the second report, the Eighth report of the Human Rights Joint Committee, The UK’s compliance with the UN Convention on the Rights of the Child (UNCRC). This covers a range of aspects, but section 8 deals specifically with Legal Aid and Access to Justice, following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) on 1 April 2013 (almost exactly 2 years ago). The report notes (para 104):
Our Report on the Bill as it passed through both Houses argued that the Government had paid insufficient attention to the potential impact of the reforms on a number of vulnerable groups, including children.
The lack of prior research on LASPO’s like impact has in fact been well documented elsewhere (see Weekly Notes 5 December 2014).
The Joint Committee report notes at para 105 that the Act “appears to have had a noticeable impact on children” and that
the number of children granted legal aid for education has fallen by 84 percent, and the number granted legal aid where their parents have divorced or separated has fallen by 69 per cent.
There was also a “significant rise in litigants in person in private family law cases”, resulting in longer hearings and increased costs.
The report also criticised the introduction of the residence test for legal aid, which it had considered “incompatible” with the UK’s obligations under the UNCRC; but the regulations introducing it had been withdrawn following judicial review proceedings in which it had been struck down as “illegal and discriminatory”.
The report, which goes on to consider other aspects of children’s access to justice, concludes at para 118 that
“the government’s reforms to legal aid have been a significant black mark on its human rights record during the second half of this parliament” and that “the evidence we heard from the outgoing Children’s Commissioner for England and from all the NGOS we took oral evidence from provides firm grounds for a new government of whatever makeup to look again at these reforms and to undo some of the harm they have caused to children.” (emphasis added)
MOJ statistics and the true picture
Not necessarily the same thing
Another report published recently was the Ministry of Justice’s quarterly Civil Justice Statistics for October to December 2014. One of its key findings was that there had been “829,000 judgements” (sic) in 2014, up 25% on 2013, which is a daunting statistic for an organisation like ICLR which aims to select and publish the important judgments (with only one “e”) that make new law or clarify and explain existing laws. But that’s by the by. The really contentious key finding is that one that says, blandly, on p 5:
The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced from 12% in 2000 to 1% in 2012 and has remained the same in 2013 and 2014.
For a number of reasons this is extremely misleading, as Tom Hickman and Maurice Sunkin explain in a guest post on the UK Human Rights blog. Once you weed out the hopeless applications that fall at the permission stage and those which subsequently settle (more often than not in the claimant’s favour) the true picture is that of those which go to trial some 30%-40% of claims still prevail.
It seems the MOJ, in customary cost-cutting mode, may have been a little economical with the statistical truth again.
Taylor Swift response to new URL suffix risk
Ever the smart cookie when it comes to intellectual property, the popular chanteuse Taylor Swift, who recently applied to register trade marks based on song titles and lyrics, (see Weekly Notes 20 February) has now applied to purchase a number of URLs based on new generic Top Level Domain names (gTLD) such as .porn and .adult. As with her applications for trade marks, it seems it was as much to prevent others misusing or exploiting the rights as to exploit them herself. So don’t go looking for raunchy content on websites like TaylorSwift.adult or Swifty.porn. (No, I haven’t even tried.)
Full story: Solicitors Journal (one paragraph of which I notice is identical to an entry in Wikipedia on gTLDs: come on guys, make an effort, get rejiggy with it.)
Some solicitors are not all they seem, and neither are their banks
A recent Regulation Roundup from Legal Futures mentioned that some solicitors firms have fallen victim to scammers who, pretending to be their or their clients’ banks, obtained confidential account details for fraudulent purposes. If someone trained to be suspicious of everyone can be scammed by these pros, no wonder little old ladies lose their savings in this way, as newspaper personal finance supplements never tire of warning their readers.
The problem is the subject of a warning from the Solicitors Regulation Authority.
But the Authority is also warning about bogus law firms, in its Spring Risk outlook:
We remain concerned about the number of bogus law firms and the risk they pose to consumers and genuine law firms. The rising trend in bogus firms has continued since publication of the Outlook in July. In the first eight months of 2014, we have already assessed 454 reports of bogus firms, and it is likely that reports this year will exceed the 548 we received in 2013
Presumably, if genuine solicitors firms can be taken in by fake banks, they can also be taken in by fake solicitors firms. Or indeed, genuine solicitors who provide fake information or evidence, an issue that came up in a recent case where a solicitor had misled the court. This was the conclusion Mr Justice Flaux came to in Boreh -v- Republic of Djibouti  EWHC 769 (Comm) and in consequence the injunction obtained by his client was set aside. The case is the subject of a blog post by the indefatigable Civil Litigation Brief blog. Suffice it to say that Flaux J does not mince his words. He finds the solicitor in question, a Mr Gray,
engaged in a strategy of equivocation and evasion which was not one which any reputable and honest solicitor could ever have adopted and the concept of “acceptable evasion” is clearly anathema to the standards of professional conduct to be expected of an officer of the court.
Bar Standards – pupillage
Would you like to shape the future of the BPTC and pupillage? That’s the invitation extended by the Bar’s regulator, Bar Standards Board
“We would like to talk to: practitioners; pupil supervisors; barristers with a role in pupillage recruitment; BPTC tutors; current BPTC students; recent BPTC graduates; and pupils.”
For a more traditional (if mainly fictitious) view of the highs and lows of pupillage, see the first of the BabyBarista chronicles, Law and Disorder, by Tim Kevan.
Gone but not forgotten
Anthony Scrivener QC, Bencher of Lincoln’s Inn, former Chairman of the Bar, died on 27 March. He was well known as a dynamic and fearless barrister, progressive in his attitudes, and the complete antithesis of the stuffiness that characterised so many of his contemporaries at the Bar. He may have been particularly sympathetic to law reporters by virtue of having been one himself, in his youth, contributing headnotes to the All England Law Reports (for which several of us at one time or another have worked, myself included). He was involved in a number of prominent cases, though often of the newsworthy rather than legally reportable sense. At one time he hovered in the wings of political prominence, and would often be interviewed on television, offering forthright opinions. One quotation (found on Twitter) has stuck with me, and seems authentic in its challenging directness: “Its a sobering thought that better evidence is required to prosecute a shoplifter than is needed to commence a world war”.
He is survived by his wife, Ying Hui Tan, who has worked as a law reporter for ICLR and for The Independent, and two children by an earlier marriage.
That’s it for now. Enjoy the week ahead, and don’t forget to vote in our 150 Years of Case Law on Trial poll, about to commence its second period, from 1915 to 1945. Jazz age flappers, suffragettes, fascism and communism – it was a period of social and political turbulence, bounded by two world wars. And in the courts, a number of landmark cases which still resonate to this day.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.