The result also forces the European Commission to decide whether or not to start infraction proceedings against the UK Government. A decision on such proceedings, which could eventually require the UK Government to change the Data Protection Act of 1998, could be taken in December.
Dr Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM, said today: "The decision by the House of Lords is a lost opportunity to provide legal clarity as the Court of Appeal's decision has been interpreted in a very prescriptive manner."
He explained that many data controllers now believe that, to qualify as "personal data," the data must have a focus on an individual or be of biographical significance for the individual concerned. The Court of Appeal said its notions were 'helpful' – i.e. non-prescriptive. But, according to Dr Pounder, "its prescriptive use has entered the data protection culture".
Dr Pounder, who is editor of Data Protection and Privacy Practice, continued: "By contrast, the Government claims that because the Court of Appeal judgment in Durant was not prescriptive, so it follows that the UK Data Protection Act is OK and infraction proceedings do not need to be commenced by the European Commission."
He concluded: "A House of Lords review could have sorted out a data protection mess. Now we wait to see whether the European Commission commences infraction proceedings".
Mr Durant has also lodged a petition at the European Court of Human Rights alleging violations of his rights under Articles 6 (Right to a fair trail) and 8 (Right to respect for private and family life) of the Convention.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.