The
focus of attention now turns to the European Commission which has
used the Durant decision as evidence that the UK's Data Protection
Act of 1998 is a defective implementation of the Data Protection
Directive of 1995.
The ground-breaking privacy case began when Mr Durant wanted
access to personal information held by the Financial Services
Authority. The FSA refused and Mr Durant took the matter to
court.
Mr Durant lost his case in the Court of Appeal in December 2003
when the Court ruled that merely mentioning an individual's name in
a document does not make that whole document "personal data" which
can then be obtained, by the individual, via the data protection
right of access to personal data. In making this ruling, the Court
narrowed the scope of "personal data" to that personal information
whose content was focused on a particular individual who was the
subject of personal data.
The Court also confirmed that paper-based personal information
was subject to the Act but only if the information was recorded in
a very highly structured filing system. The Court had in mind a
manual system which possessed the functionalities of a relational
database so that specific information about a particular individual
could be readily pinpointed within the system.
The position for manual files has changed for the public sector
because of the Freedom of Information (FOI) legislation which came
into full force in January 2005 and which provides an individual
access to any recorded information which focuses
on that individual. But the Durant decision still means that very
little of such manually held personal information would not be
subject to other aspects of the Data Protection Act (e.g. most
manual files containing personal details would not be subject to
all of the Data Protection Principles).
This means that from the perspective of private businesses which
are not subject to FOI rules, the Durant decision in the Court of
Appeal effectively reinstated the privacy standards set by the
previous Data Protection Act of 1984, by excluding manually held
personal files and thereby limiting the application of the 1998 Act
to automatic processing of personal data which directly referred to
identifiable individuals.
The European Commission is believed to have cited the Durant
ruling as one reason to suggest that the UK's Data Protection Act
is a defective implementation of the Commission's Data Protection
Directive. It sent a 20-page letter to the UK Government last year,
setting out its concerns and raising the prospect of legal
proceedings before the European Court of Justice. This letter and
its content have been kept secret.
The Department of Constitutional Affairs (DCA), the part of the
UK Government responsible for data protection, has told OUT-LAW
that it believes that there was nothing wrong with the Data
Protection Act. It argues that the Court of Appeal's view in Durant
is being widely misinterpreted and that it is this which is causing
some of the difficulties with the Commission.
A spokesman for the DCA told OUT-LAW, "We have ongoing
discussions with the Commission and are making progress towards a
resolution of its concerns". However, he added that by Christmas,
if there is no agreement, "the Commission could decide to commence
infraction proceedings proper".
The Commission has already commenced infraction proceedings
against Germany and Austria for implementing the legislation in a
way that does not guarantee the independence of their data
protection authorities. According to the Commission, this is in
breach a Directive obligation which requires that data protection
bodies be completely independent from government.
Mr Durant spoke to OUT-LAW about his decision to withdraw his
petition to the UK's highest court. "I have gone to every
conceivable regulator, gone through every conceivable complaints
procedure and tried every Court in the land except the House of
Lords," he said. "None of these bodies has said to me 'let us try
and resolve my complaint.'"
He explained that the costs were projected to rise into the tens
of thousands of pounds and he was unsupported by legal aid. "I
could not overlook being bankrupted by the mounting costs
associated with losing my tussle," he said.
"It is very sad," Mr Durant concluded, "that in a case which has
constitutional implications for every UK citizen, legal aid cannot
be obtained."
