The law moves slowly – 24 years too slowly

Herald of Free Enterprise

Almost 3 years after this photograph was taken in Dover, on the cold evening of 6 March 1987, the Herald of Free Enterprise sailed from Zeebrugge bound for Dover with 459 passengers and 80 crew. Tragically the roll-on-roll-off ferry was designed for the Dover-Calais run, so in order to use Zeebrugge its bow ballast tanks were flooded to lower the car decks to reach the Zeebrugge ramps. The combination of this nose-down attitude and sailing with its bow doors still open resulted in the Herald taking on a mass of water shortly after it cleared the Zeebrugge harbour and in a matter of less than a minute capsizing. Only the fact that it capsized onto a sandbank prevented the ship sinking completely. 193 people died, many not by drowning but by hypothermia, trapped in the ship in water that was only 2-3°C.

The report of the Wreck Commissioner, Mr Justice Steen, makes grim reading. He found:

All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.

This led eventually to the prosecution of P&O European Ferries (Dover) Limited, formerly Townsend Thorensen, and five individuals for corporate manslaughter. Despite the clear failings within the company, the prosecution failed as Mr Justice Turner directed the jury not to convict ([1991] 93 Cr App R 72 (Central Criminal Court)). In order to convict the company of manslaughter under the identification principle that applied at the time, one of the individual defendants who could be “identified” with the company as its “controlling mind” would have had to have been guilty of manslaughter (see Bolton (Engineering) Co. v. Graham [1957] 1 QB 159, per Denning LJ, affirmed by the House of Lords in Tesco Supermarkets Ltd v. Nattrass [1972] AC 153). As this was not the case, the company could not be found guilty.

This was clearly unsatisfactory. Early critics, such as Professor Gary Slapper at the Open University, argued that the courts should adopt the aggregation principle, whereby a company could be found guilty of manslaughter where the combined fault of the directors and officers making up its “controlling mind” can be aggregated, rather than any one individual having the necessary intent for manslaughter.

However, on 15 February 2011 Cotswold Geotechnical (Holdings) Limited were the first company to be successfully prosecuted for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. The Act came into force on 6 April 2008. The prosecution followed the death of Alex Wright, a 27-years-old geologist, on 5 September 2008. He was taking soil samples from the bottom of an unsupported 3.5 metre trial pit that collapsed on him, burying and asphyxiating him. Industry practice calls for all trial pits of over 1.2 metres depth to be shored and supported. Mr Justice Field sentenced the company at the Winchester Crown Court to a fine of £385,000, which was more than its annual turnover. He therefore ordered that the company pay the fine at a rate of £38,000 per year. The company was convicted under the following provisions of the Act:

1   The Offence

(1)   An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised-

(a)   causes a person’s death, and

(b)   amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

(3)   An organisation is guilty of an offence under this section only if the way in which its activitieis are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

As someone who first considered a career in law as a result of qualifying as a health and safety officer, I am pleased that at last we appear to have a workable corporate manslaughter law. It has only taken 24 years.

Whilst this extreme form of deterrence is not an ideal way to promote health and safety, measures such as this will become more important as the Health and Safety Executive loses over a third of its funding under the October 2010 Comprehensive Spending Review. This will lead to cuts in the number of proactive inspections, and inevitably a fall in prosecutions under the Health & Safety at Work etc. Act 1974. The last full year fatal accident statistics, for 2009/10, show that Great Britain has a good record, with a steady decreasing trend in the fatal accident rate. None of us wants to see this trend reversed.

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In memory of Hannah Foster

Usually I give Ofcom consultations a quick speed read, just to be aware what’s happening. Sometimes I even get lucky and a competitor writes up a consultation before I’ve even read it, saving me more time. (Hat tip, as we say on Twitter, to Rob Bratby and his blog post Rules applicable to all UK telecoms operators to change, which I picked up during school half-term.)

So this brings me to the Ofcom’s consultation dated 24 February 2011 discussed by Rob: Changes to General Conditions and Universal Service Conditions. Unless you’re in the telecoms regulatory business, I’d give it a miss.  One of the changes proposed did, however, catch my attention.  Ofcom has considered the amendments required by the Citizens’ Rights Directive 2009/136/EC to the EU framework for telecoms regulation, and in particular the requirement to introduce equivalent access to emergency services for disabled people.  It proposes that this be done in the UK by requiring mobile operators to provide an emergency SMS service.

I have 2 lovely daughters, aged 18 and 16.  Like most dads of teenage girls, I want them to be safe and I worry about them, but I realise that they have social lives to live.  Until recently they lived in Southampton, not too far away from The Hobbitt in Bevois Valley.  This is a popular student pub – I used to go there myself when I was an undergraduate at Southampton.  Sadly, it is also where Hannah Foster, aged 17, went on the night of 14 March 2003, the night she was abducted on her way home, raped and murdered.  On 25 November 2008, Maninder Pal Singh Kohli, then aged 41, was found guilty on the charges of kidnap, rape and murder at Winchester Crown Court and was sentenced to life imprisonment, with a recommended minimum term of 24 years.

During the trial, evidence of Hannah’s last movements derived from her mobile phone records was critical.  Also included in the trial, but not conclusive evidence to convict her killer, were recordings of her 999 call.  She knew she was in danger, so made what is known as a silent emergency call by dialling 999 on her mobile in her pocket.  There is a police protocol to deal with these silent calls, but it is recognised that particularly with the advent of mobile phones, most of these silent emergency calls are accidental.  If the police get no response, following their protocol, they terminate the call.  This happened in Hannah’s case, so tragically her call for help went unheeded.

As a result of this and similar incidents, some emergency call centres (such as in Hampshire) will respond to requests for emergency services sent by text message to 80999.  However, as far as I am aware, no location data is forwarded with the 80999 text message. So I look forward to the introduction of full emergency SMS. Hopefully, as well as providing for the intended access to emergency services for disabled people, this will finally deal with the problem of silent emergency calls so that the next girl in trouble will be saved.

PS

112 is the European Union emergency telephone number, and also the default number on all GSM (2G) mobile phone networks, which convert 112 calls automatically to the relevant national number.  Even though this was introduced in 1991, my anecdotal evidence suggests that this is still not widely recognised in the UK. Surely we ought to teach this as the standard emergency number, particularly for use on mobiles?

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We’ll keep the Red White & Blue Flag flying here

A personal view from a Pompey fan.

If you are ever at a match at Fratton Park, Portsmouth, take a short detour on your way back to Fratton railway station to drop in on the Red White & Blue pub on Fawcett Road (in the absence of a licensable picture to embed in this post, look up 150 Fawcett Rd on Google Street View or the Portsmouth News story and picture).  When you are there, raise your glass to the pub landlady, Karen Murphy because:

  • if you are passionate about the state of professional football in England, she may have saved the soul of the English game;
  • if you are also a pro-European lawyer, her case may mark the watershed for the use of territorial intellectual property and similar rights to create artificial barriers to the internal market and the free movement of goods and services; or
  • if, like me, you harbour Pirate Party sympathies, this case is another example of rights holders abusing the original purpose of copyright to use in debates about reform of copyright law.

This is why.

Background

Karen Murphy wanted to show Premiership football in her pub.  She was unwilling to pay the high fees for a BSkyB commercial use licence to show the games in a public place, so she used a decoder card imported from Greece to obtain a feed from a Greek broadcaster. Her Greek-sourced Premiership live games licence fee was around £800 per year, as opposed to the BSkyB fee that can be over £1,000 per month (BSkyB currently makes around £200m a year just from pub licences).  She was prosecuted for a breach of copyright law in the Portsmouth Crown Court for showing 2 matches (19th August 2006 Bolton Wanderers v. Tottenham Hotspur and 25th September 2006 Portsmouth v. Bolton Wanderers (Pompey lost 0-1)), and appealed by way of case stated to the High Court. In contrast, the pub landlords of the Hatch Inn Gate in Reading were fined £2,500 each plus costs for a similar offence in respect of one Reading game (note the involvement of the Federation Against Copyright Theft) and did not appeal.

The High Court made a reference to the Court of Justice of the European Union (“CJEU”) on a number of questions, but noted that on its own interpretation of English law, it would dismiss the appeal. On 3 February 2011 the Advocate General for the case, Case C-429/08, Juliane Kokott (who is a bit of a legal superwoman), gave her opinion on the legal point of the case to the CJEU. If the CJEU upholds her view, Mrs Murphy’s appeal should be allowed when her case reverts back to the High Court.

Saving the Soul of English Football

All the Premiership clubs’ copyright in television coverage of football matches are collected into one legal entity, Football Association Premier League Ltd (“FAPL”).  Each of the Premiership clubs is an equal shareholder in FAPL.  As a rights holder, FAPL can auction whole Premiership packages of rights at the best price for all the clubs (this is in contrast to, say, La Liga in Spain, where the clubs individually negotiate TV rights deals).  The most valuable package of rights is the rights to live transmissions of football matches in the UK. This package of rights has been held since the FAPL began auctioning these rights by BSkyB. FAPL currently earns £1.8bn for its three-year UK rights licence to BSkyB. The revenue from exploiting TV rights generates around half Premiership clubs’ income. This has had many consequences for the English game: hyper-inflation of players’ wages, lack of development of national football talent and the massive over-leveraging of clubs desperate to buy players in order to avoid the financially ruinous drop out of the Premiership, or for the top teams, the disastrous consequences of not qualifying for the UEFA Champions’ League. Arguably the emphasis on Premiership football has also seriously damaged football in all the other professional leagues and has ruined top-flight football as a working-class, spectator sport (prawn sandwich, anyone?).  The way TV rights money is distributed to the Premiership clubs has also arguably created a league-within-a-league to the detriment of the sporting nature of the league itself, as the money from the UK rights’ deals is not distributed evenly to all clubs.  With the exception of Blackburn Rover’s title in 1994/5, all Premiership titles have been won by one of Manchester United, Chelsea or Arsenal.

If the CJEU upholds the principle of the free movement of goods and services across the EU internal market, then it will be open for every consumer of satellite TV to source a decoder from any other member state in the EU to view live Premiership football. At a stroke the value of UK rights will be diminished.  Many would argue that the reduction in the amount of revenue in the game will force it to redress its structure and priorities.

Limits of Intellectual Property Rights and Territorial Restrictions

Intellectual property rights, being creations of statute, are by their nature territorial.  However, one of the founding principles of the European Economic Community, leading to the European Union, was to create a free trade market area, where goods and services would be able to move across international boundaries without any restriction in custom duties or any other national restrictions.  There has always been a tension between the proper use of intellectual property rights to protect national markets and the principle of the free movement of goods and services.

The intellectual property rights at issue in this case concern the sub-divisions of copyright known as the right of reproduction and right of communications to the public, which are set out in Directive 2001/29/EC, and the right to communicate to the public by satellite copyright works, as set out in Directive 93/83/EEC.  There were other territorial restrictions to consider, being those provided for under Directive 98/84/EC, which provides for the legal protection of conditional access services.  Conditional access service is the term used to describe the service that permits a consumer of satellite TV to receive, decrypt and view satellite broadcasts by use of a set-top box and decoder card.

On the other side of these territorial rights and restrictions are the “free movement” treaty provisions that prevent quantitative or other restrictions being placed upon the import of goods or provision of services (at Articles 34, 52 and 56 TFEU (formerly Articles 28, 30 and 49 EC)). 

As might be expected, these Treaty provisions are qualified both within the Treaty and by case-law, so that, in the example of this case, measures to protect industrial and commercial property may be justified.  The CJEU has developed over the years, in particular with respect to trademark cases, a general principle of the exhaustion of rights for the free movement of goods.  Put simply, the principle provides that when goods are lawfully placed on any EU internal market,  the exclusive rights of the intellectual property rights owner are exhausted so that the goods can be purchased in that market and resold anywhere else in the EU. 

Juliane Kokott argued in her opinion that the exhaustion of rights principle should apply equally to the free movement of services.  She found that there was no protection of industrial or commercial property justification for the principle not applying in this case.  In particular, she noted that any intellectual property rights restriction should not be considered to include a “right to charge different prices for a work in each Member State.”   She was not persuaded by the FAPL argument that there needed to be a restriction on rights in order to protect the so-called “closed period” in the UK, being a period in which no live transmissions are possible in order to protect the gates of the clubs.  She noted that the lack of closed periods in France, Germany, Italy, Spain and Northern Ireland had not affected attendance at matches in those territories.

Proper Exploitation of Rights

The Advocate General also considered the application of competition law to the FAPL method of granting licences throughout the EU, as this could be in breach of Article 101(1) TFEU (formerly Article 81(1) EU), being the prohibition on anti-competitive agreements between undertakings that have as their object the prevention, restriction or distortion of competition.  She noted that the series of licences imposed contractual obligations on the licensees to prevent their decoder cards being exported outside of the licensed territories.  She considered that unless a justification under Article 101(3) existed, this arrangement of licences could be incompatible with Article 101(1) TFEU. 

The Advocate General’s opinion therefore argues that FAPL may be using intellectual property rights improperly.  This is a core argument of the Pirate Party, that the development of copyright has gone too far.  To put it in simple UK terms, the Statute of Anne of 1709 granted publishers of a book 14 years copyright protection, with a further term of 14 years if the author was still alive after expiry of the first term.  This was to provide printers with sufficient time to recover their investment in setting the type and printing the book and to incentivize authors to publish.  One of the Pirate Party arguments is that the extension of this term to life of the author plus 70 years has gone way further than is necessary to incentivize authorship and to allow publishers in whatever medium to recover their investment in the distribution and production infrastructure required for that medium.

It will be interesting to see where the CJEU goes with this case, given the view of the Advocate General that free movement of services should have priority here over any intellectual property rights restrictions.

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Internet Blackout – it couldn’t happen here, could it?

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.  Vodafone Egypt reported on 30 January 2011 (on its Group website, as its local website was unavailable outside of Egypt) that it had resumed voice call services.

The response in many parts of the world was understandably negative, particularly as the Internet blackout prevented contemporaneous reports coming out of Egypt on social media networks such as Twitter or Facebook.  The US Secretary of State, Hillary Clinton, was widely reported to be urging the Egypt Government to restore communications.

Could the UK Government do the same thing: order an Internet blackout and mobile phone network shutdown?

Internet Blackout

The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down the Internet, at least by ordering UK-based communications providers to close 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.

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, before you get too outraged about the Internet blackout and mobile phone shutdown in Egypt, consider this: arguably the legal tools are all available for the UK Government to do exactly the same in the UK right now.

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Max Mosley’s European privacy law fight

Max Mosley in 1969 © Raimund Kommer

A “guest” post by Charles Russell partner Nick Armstrong, one of our libel and privacy lawyers.

Former FIA head Max Mosley’s current application to the European Court of Human Rights is not going to change much for those working in television.

He is attempting to change the English law of privacy to make it obligatory for the media, specifically the tabloid press in practice, to give advance notice to the subject or ‘victim’ of a forthcoming article.

Of course, under the Ofcom Broadcasting Code (and its predecessors), that has been the norm for many years. It has long been a key difference between broadcasting and press regulation, that newspapers are under no obligation to give prior notice whereas broadcasters must give an individual or company a fair and informed opportunity to comment and contribute in advance.

Mosley’s application to the ECHR on 11 January 2011 arises from his success in 2008 against The News of the World. The High Court found in his favour over a front page article and pictures about his activities with prostitutes in a London flat. Mosley was awarded £60,000 damages.

He now seeks to show that in allowing newspaper to publish high intrusive and damaging stories without any form of prior notification to the subjects, the UK is in breach of its duties under Human Rights legislation.

Newspapers do in fact, in practice, often notify their “victims” in advance because the comments and input thereby obtained will allow for a more detailed and ultimately interesting article.

Additionally, if the article contains defamatory statements, the rules laid down by the Court following the Reynolds case mean that an additional defence may protect the publisher/broadcaster if (among other things) a potential complainant has been offered an appropriate opportunity in advance to contribute and respond to allegations being made.

However, there remains a category of case, often involving very prominent celebrities engaged in very sensitive types of conduct, where a newspaper will seek to protect its exclusivity and also avoid the potential loss of the story by reason of the celebrity obtaining an emergency injunction, by giving no notice at all. In some cases, a first edition is prepared with a dummy front page, with the actual “exclusive” only appearing in the early hours of Sunday in subsequent editions, too late for the competition to copy or for a complainant to find a Judge.

In the argument on behalf of Mosley before the European Court of Human Rights, his QC Lord Pannick suggested that it is a problem which is particularly acute in this country. He said “why such journalistic intrusion into the sex lives of the victims should be so popular in the UK when it is a phenomenon unknown in its intensity elsewhere in Europe would, I think, require a psychological study… It is a curious paradox that in a society which has become increasingly tolerant, and rightly so, on matters of sexual freedom, a society that has increasingly valued the right to personal privacy on sexual matters, that the News of the World should, like some journalistic Taliban, be able to insist on forcing its way into the bedrooms of consenting adults, and frustrate the rule of law by preventing independent judges from protecting the right to private life.”

Having considered the “uniquely intrusive nature” of the UK tabloid press, Lord Pannick QC added “The UK does have a positive obligation under the Human Rights Convention to provide adequate procedures to ensure effective remedies by way of injunction….the UK has failed in its duty”.

The opposing case, on behalf of the UK Government, was that there was a sensitive balance to be drawn between the two relevant articles of Human Rights Convention: Article 8 (the right to private and family life) and Article 10 (the right to freedom of expression).

Opponents of Mr Mosley’s application have argued that the “prior notification” requirement would place an undue fetter on the press. The coverage over the last year or two by the Telegraph of MPs expenses provides a theoretical example: if there had existed a legal obligation of prior notification, the Telegraph would have had to notify each and every politician several days in advance about the proposed allegations of expense abuse. The additional complication and cost of that step, plus the likely proliferation of attempts by various MPs (perhaps the most culpable) to obtain injunctions, could have severely fettered what has turned out to be a very important piece of investigative journalism. The complexity and cost of the task might even deterred The Telegraph from embarking on the investigation in the first place – a classic instance (say critics) of the potential chilling effect of what Mosley is trying to achieve.

The European Court of Human Rights is unlikely to give its decision for several months.

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DoJ, Wikileaks and Twitter: Stones and Glasshouses

WL Helping HandThere seems to be a degree of outrage on many social media channels about the Department of Justice in the United States obtaining a court order to require the US-based social media platform Twitter, and possible Facebook and Google as well, to reveal account information about certain users who are alleged to be involved with Wikileaks. There should be no doubt amongst UK social media commentators or users that the law in the UK is more generous to government authorities than anything in the US.

US Law

The court order against Twitter was made under 18 USC §2703(d), which is an order made on application to a magistrate judge (and not a subpoena, as is being widely reported). These orders can only be granted where it is shown by the applicant government entity that there are reasonable grounds for believing that the information it will obtain from the respondent communications providers will be relevant and material to an ongoing criminal investigation. Whilst we are not experts in US law, we believe that orders under 18 USC §2703(d) enable the government entity making the application to obtain what we in the UK would call the communications data (see below) for a particular account from a respondent communications provider and details about the subscriber or customer for that account. The contents of any communication can only be demanded if they are over 180 days old, otherwise another criminal evidence procedure is required. As far as we are aware, in the US there is no federal statutory obligation on communications providers to retain communications data, but 18 USC §2703(f) does provide for data preservation orders.

UK Law

This post explains the relevant UK law, which shows that not only can similar communications data to the Twitter account information sought by the Department of Justice be obtained by government entities in the UK from UK communications providers, but that information can be demanded for much broader purposes than in connection with an ongoing criminal investigation. 

In the Regulation of Investigatory Powers Act 2000 (“RIPA”), “communications data” is defined as being (section 21(4) of RIPA):

(a)  any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;

(b)  any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person—

(i)  of any postal service or telecommunications service; or

(ii)  in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system;

(c)  any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.

Whilst it is unclear to what extent communications data under RIPA includes web page or other internet usage data, the definition of traffic data was carefully drafted to exclude web page information (rider at s.21(6)).

Whilst communications providers had no standing obligation to retain data under RIPA, a designated person (as defined in sections 25(1) and (2)) may require any telecommunications operator of a telecommunications system that is “in possession of, or be capable of obtaining, any communications data” to obtain that data, if not already in the operator’s possession, and disclose it (section 22(4)).  However, the grounds under RIPA upon which communications data can be ordered to be obtained are the most extensive in any UK legislation.  They include, for example, matters such as “for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department” (section 22(2)(f)).  The original purposes have also been extended by the Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006 (all these purposes together being the “RIPA Purposes”).

The scope of these RIPA Purposes was addressed in the Home Office Acquisition and Disclosure of Communications Code of Practice, which came into effect on 1 October 2007 (the “RIPA Code”). The RIPA Code seeks to emphasis that any action by a designated person or a person authorised by them is “necessary and proportionate” (see paragraphs 2.1, 3.5, 3.7, 3.31 and 3.48). However, it does not contain much in the way of guidance on how a designated person is to assess what is “necessary and proportionate”.

Any notice given by the delegated person to a communications provider is only valid for a maximum of one month (section 23(4)), but it would appear that under RIPA the acquisition period for the relevant communications data which is the subject of the notice, can be unlimited.  The RIPA Code states that any notice must give the start date and end date for the acquisition of data, but with limits on future end dates, so that where a notice relates to the acquisition of communications data that will or may be generated in the future, the future period is restricted to no more than one month from the notice date (paragraph 3.44).

In practice government entities in the UK do not have to consider seeking an order under section 22 of RIPA to preserve communications data, as the UK has for a number of years implemented a data retention regime.  Communications providers in the UK are required to retain communications data under the Data Retention (EC Directive) Regulations 2009 (the “Data Retention Regulations”), which implement Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 (the “Data Retention Directive”) on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. The Regulations do not set out the purposes for data retention, but it is stated in the Data Retention Directive that the intention is to “ensure that the data is available for the purposes of the investigation, detection and prosecution of serious crime” (Art.1(1))(the “Data Retention Directive Purposes”)(emphasis added).

In the Data Retention Regulations “communications data” is defined as being “traffic data and location data and related data necessary to identify the subscriber or user”.  Traffic data means “data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing in respect of that communication and includes data relating to the routing, duration or time of a communication”(Regulation 2).  This definition is slightly different from that set out at section 21(4) of RIPA)(see above); the most clear differences are that in RIPA location data is expressly included and defined (at sections 21(6) and (7)), and the more broad definition of traffic data.  In particular, the definition of traffic data in the Data Retention Regulations does not exclude from the definition of traffic data, data to the level of web page information.

Under the Data Retention Regulations public communications providers are required to retain the communications data set out in Regulation 4 and the Schedule.  This is generally data necessary to: (a) to trace and identify the source of a communication; (b) to identify the destination of a communication; (c) to identify the date, time and duration of a communication; (d) to identify the type of communication; or (e) to identify users’ communication equipment (or what purports to be their equipment).  The retention period for all communications data retained under is twelve (12) months (Regulation 5).  The Data Retention Regulations do not include an access regime for any retained communications data, but merely state that access may only be obtained only in specific cases and as permitted or required by law (Regulation 7).

Other Relevant Legislation

Data Protection Act 1998

The Data Protection Act 1998 (“DPA”) fifth data protection principle (at paragraph 5 of Part I of Schedule 1) provides that personal data shall not be retained than is necessary for the specified and lawful purpose(s) of the data controller.  Consequently, communications providers ought to state in any fair processing notice made available to their customers that communications data is being retained as required by the Regulations and may be disclosed to public authorities permitted to access the communications data under RIPA, even though most of this processing will be subject from the subject information provisions (as defined at section 27(2) of the DPA) under an exemption in Part IV of the DPA (section 28 (National security) and section 29 (Crime and taxation) being the most obvious).

Communications providers will be relying, in most cases, on the lawful purpose set out in paragraph 5 of Schedule 2 of the DPA (processing necessary for the administration of justice, to carry out statutory functions or functions of the Crown, a Minister of the Crown or a government department or for “the exercise of any other functions of a public nature exercised in the public interest by any person”), or, where the communications data contains sensitive personal data, on the purposes set out at paragraph 7 of Schedule 3 of the DPA (as paragraph 5 of Schedule 2, except without the ‘functions of a public nature exercised in the public interest’ purpose).

Human Rights Act 1998

Article 8(2) of the European Convention of Human Rights (the “Convention”), incorporated into UK law by the Human Rights Act 1998 (“HRA”), provides that “there shall be no interference by a public authority with the exercise of this [Article 8 privacy] right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (the “Art 8(2) Purposes”).

The principle of retention of communications data for the Data Retention Directive Purposes, which are narrower than the Art 8(2) Purposes, is therefore lawful under the Convention and the HRA. What is open to question is the lawfulness of any of the Data Retention Regulations’ retention periods and the interference with data subjects’ rights to privacy where retention (and access) is carried out for RIPA Purposes that go beyond those set out at Article 8(2).

[We found the post "Thoughts on the DOJ wikileaks/twitter court order" by Christopher Soghoian on his slight paranoia blog interesting - and useful to confirm our understanding of 18 USC § 2703.]

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The Daily Mail, Dorries and Data Protection

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Our last two posts addressed the position of Nadine Dorries MP under the Data Protection Act 1998 (the “DPA”) in respect of sensitive personal data concerning her partner’s wife posted on the MP’s website in her Personal Statement to the Press (here and here).

It appears that the Personal Statement to the Press may have been made in anticipation of a story being published in the Daily Mail the following day on the MP’s new relationship. In that story the same sensitive personal data was published, raising the question of whether the Daily Mail was itself potentially in breach of the DPA.

There is one material difference between the two cases. The Daily Mail, being a news organisation, can rely on the exemption at section 32 of the DPA. This applies where the processing of personal data, including the publication of it, is done for the special purposes of journalism, literature or art.  It is not a complete exemption from the provisions of the DPA, but it does permit a journalism organisation which “reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest” to breach a data protection principle (section 32(1)(b)) to breach a data protection principle where it “reasonably believes that, in all circumstances, compliance [with the data protection principle] is incompatible [for the purposes of journalism]” (section 32(1)(c)).

Publication, it is clear, includes making the journalistic material available to the public or any section of the public by any media (from section 32(6)).

A subject of any journalistic material retains their right to bring an action for compensation, including damages for distress (section 13(2)(b)), which means that any newspaper wishing to publish must weigh up the risk of being sued under the DPA and a court finding that newspaper could not have had a reasonable belief that the publication was in the public interest.  There are extremely few cases on this point, but perhaps the most notable is the Naomi Campbell case.  She brought a case against the Mirror as a result of pictures being published of her leaving a Narcotics Anonymous meeting.  The data protection aspect of the case was thoroughly described by the Master of the Rolls, Lord Phillips, when the case was appealed to the Court of Appeal (Naomi Campbell v Mirror Group Newspapers [2002] EWCA Civ 1373, subsequently appealed to the House of Lords [2004] UKHL 22).  At the Court of Appeal it was determined that the publication was in the public interest so that the section 32 exemption applied.  In the House of Lords the case was determined upon the basis of the balance of rights under the Human Rights Act 1998 rather than expressly dealing with the DPA, but this can be implied from section 32(1)(b) as being the balance between the right to freedom of expression and the right to privacy.

So in deciding whether the Daily Mail has breached the DPA, you have to consider, as a court would, whether there were grounds for a reasonable belief that publication of information on her partner’s wife was in the public interest.

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