I don't agree with the sentiment (not sure whether expressed flippantly or
not, so forgive me if it was flippant) that EU Directives have obscure
minutiae. The Directive was passed by the Council of Ministers and the
European parliament, both of which have adequate UK representation. If the
UK Parliament misinterpreted the Directive when it passed the 1998 Act, and
if the Courts have used excessive discretion, then the wording of the
Directive becomes all important.
Charles
Professor Charles Oppenheim
Department of Information Science
Loughborough University
Loughborough
Leics LE11 3TU
01509-223065
(fax) 01509-223053
----- Original Message -----
From: "Martin Hoskins" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, May 19, 2004 8:55 AM
Subject: Re: UK's Data Protection Act Might Not Meet European Union Standa
rds
> Perhaps we are merely witnessing two Teutonic plates slowly colliding -
> these plates are comprised of the "data protection evangelists", who wish
> that data protection legislation was more in accordance with their
personal
> values, and the "data protection conservatives", who wish to adopt a
> minimalist approach to standardisation.
>
> Given the attention we often pay on the open roads to speed limits, it
> constantly surprises me that some individuals place such an emphasis on
the
> obscure minutiae of European Directives!
>
> Long live the (UK) courts! Their decisions often bring a smile to my
> face................
>
> Yes, I have a Friday feeling aleaady.
>
>
> Regards
>
>
> Martin Hoskins
> Data Protection Manager
>
> T-Mobile (UK) Ltd
> Hatfield Business Park
> Hatfield, Hertfordshire AL10 9BW
> +44 (0)7957 234585
> +44 (0)1707 319056 fax
>
>
> -----Original Message-----
> From: Tim Trent [mailto:[log in to unmask]]
> Sent: 19 May 2004 08:37
> To: [log in to unmask]
> Subject: Re: UK's Data Protection Act Might Not Meet European Union
> Standards
>
>
> So, not controversial at all, Chris?
>
> Actually this reflects what many of my colleagues are feeling. We do have
> potentially poor implementation, and thus the courts are free to interpret
> to the best of their ability.
>
> Having legislation that you can drive a coach and horses through without
> even tearing the paper is ridiculous, and expecting people to comply with
it
> in such different ways across Europe is impossibly huge as a business
> burden, profit or non profit making organisation!
>
>
>
>
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
> email: [log in to unmask]
> Marketing Improvement Limited, Abbey House, Grenville Place, Bracknell,
> United Kingdom, RG12 1BP http://www.marketingimprovement.com
>
>
>
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> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Pounder Chris
> Sent: Wednesday, May 19, 2004 12:02 AM
> To: [log in to unmask]
> Subject: [data-protection] UK's Data Protection Act Might Not Meet
European
> Union Standards
>
> The contents of this e-mail are confidential and may be privileged. Please
> refer to the notice at the foot of this e-mail before reading any further.
>
>
>
> I have filed this with Masons' out-law news services
>
> If someone wants further detail, I will provide a file which outlines more
> info on the below - just reply to this e-mail
>
>
> Chris
>
>
>
>
> UK's Data Protection Act Might Not Meet European Union Standards
>
> In December last year, the landmark decision of the Court of Appeal in
> Durant -v- FSA narrowed the scope of data protection to such an extent
that,
> on a subject access request, it effectively applied only to computerised
> personal information which focused on a living individual in a
> biographically significant way.
>
> Today, the editors of Data Protection and Privacy Practice, a newsletter
> published by Masons, said: "The Durant decision is based on faulty
reasoning
> which could result in the Data Protection Act of 1998 being found to be an
> inadequate implementation of the Data Protection Directive of 1995".
>
> Last week, Mr Durant filed papers with the European Commission in
Brussels,
> claiming that the UK Government had not implemented the Data Protection
> Directive properly. The detailed analysis published in Data Protection and
> Privacy Practice has been attached to substantiate that claim.
>
> In addition, the Editors say that certain aspects of the Information
> Commissioner's published advice in relation to the impact of the Durant
> decision on certain CCTV systems, and on the recording of a name, does not
> stand up to detailed scrutiny.
>
> Dr. Chris Pounder, one of the editors of Data Protection and Privacy
> Practice, explained why the UK could be in breach of its Directive
> commitments: "In our view, the Directive's guarantee of the data subject's
> right of access is seriously undermined by the breadth of judicial
> discretion assumed by the English Courts in relation to section
> 7(9) of the Data Protection Act 1998. We are also of the view that there
are
> arguments that the implementation of the Directive's provisions in respect
> of the meaning of personal data, can also be challenged."
>
> Section 7 of the 1998 Act deals with an individual's right of access to
> personal data. Section 7(9) states: "If a court is satisfied on the
> application of any person who has made a request under the foregoing
> provisions of this section that the data controller in question has failed
> to comply with the request in contravention of those provisions, the court
> may order him to comply with the request."
>
> Dr. Pounder continued: "In the judgment, the Court of Appeal has
interpreted
> the 'may' in section 7(9) of the Act to claim a general and untrammelled
> discretion not to enforce the right of access. By contrast, the 1995
> Directive requires Member States to guarantee the right of access - this
> means that the 'may' must be narrowly constructed". Dr Pounder concluded
> "One cannot have a requirement to guarantee rights of access on the one
hand
> and have the courts having wide discretion not to back up the guarantee on
> the other. There is a major inconsistency here."
>
> In relation to the Court of Appeal decision itself, Dr. Pounder said that
> there were several major problems with the reasoning displayed in the
> judgment. Dr. Pounder said "In our analysis we show that all the arguments
> that have been used to narrow the scope of personal data are based on a
> misunderstanding of the provisions of the Act, and/or of its predecessor,
> the Data Protection Act 1984. In one case, the reasons given by the Court
of
> Appeal for its judgment directly contradicts the reason the Government
gave
> Parliament when it enacted the legislation. This fact is plain to see in
the
> Parliamentary record published in Hansard".
>
> Dr Pounder said "It is interesting to note that it was the discretion last
> issue which unlocked Mr. Durant's route to the Court of Appeal. By
> challenging discretion successfully, Mr. Durant was able to raise doubts
on
> the more substantive issues. History could now repeat itself"
>
> Dr. Pounder concluded: "Without the discretion point, the arguments for
> compliance or non-compliance are not clear cut and, on their own, might
even
> not be worth exploring. However, given that the court's interpretation of
> its discretion to order a data controller to give access is, in our view,
> wholly non-compliant with the objectives of the 1995 Directive, it could
be
> that this is the issue which brings the whole of the UK's implementation
> into sharp focus".
>
> Dr. C.N.M. Pounder
>
> Consultant & Editor of Data Protection & Privacy Practice Information &
> Technology Group Masons - International Law Firm
> DDI: +44(0)20 7490 6605
> Fax: +44(0)20 7490 2545
> E-mail: [log in to unmask]
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