I don't think we ever get to the point of an English court applying the
WP opinion to be honest (and so Lister v Forth Dry dock will not really
feature). The opinion is not an instrument which would be construed by
the English courts. My thought that you quote was partly academic
curiosity (what would an English court do if they did have to construe
it) but also partly a test of the usefulness of the opinion. Most
often, its clear when there is personal data. The opinion if useful at
all could be referred to (in the same way as the Durant "focus" test) to
assist in the difficult situations at the edge of the definition.
I would say that the Court of Appeal in Durant most certainly did think
they were applying a purposive interpretation; its just a different
outcome than that of the WP.
As I say, going forward English courts (and UK ICO) would until there is
an ECJ decision (or a reference to the House of Lords) to the contrary
have I think to continue to apply Durant. This of course (in those very
few cases at the margin, which of course are those which lawyers find
interesting).
Renzo
Renzo Marchini
Counsel
Dechert LLP
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-----Original Message-----
From: Nigel Roberts [mailto:[log in to unmask]]
Sent: 16 July 2007 19:18
To: Marchini, Renzo
Cc: [log in to unmask]
Subject: Re: [data-protection] Def of Personal Data by the Article 29
Working Party
I found this fascinating.
Thing is, when you say
> result, but actually found the test very hard to apply (I think a UK
> court minded to get to the same result could in good faith apply the
> test and not find personal data).
/HOW/ do you consider the Court would apply the test? That is to say
would they construe it literally, or purposively.
In a case where the Directive was being considered (and practically,
that would have to involve an 'emanation of the state'), I would suggest
the Court should construe the test teleologically (Litser v Forth Dry
Dock is authority for that, isn't it?).
And if it does do that, it would be much more likely to find personal
data, wouldn't it?
Nigel
--
Nigel Roberts FBCS
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Marchini, Renzo
Sent: 16 July 2007 18:26
To: [log in to unmask]
Subject: Re: [data-protection] Def of Personal Data by the Article 29
Working Party
I read this with interest (as have no doubt many of us involved in this
area).
It gives a very wide definition of personal data, and in particular a
wide view of what it means for information to "relate to" an individual
(the opinion discusses other aspects, but this is the one which features
in Durant). The court of appeal in Durant said - in essence - that the
information had to have a "focus" on the individual to be that person's
personal data. This was widely read as being very restrictive.
The Working Party here has gone much wider (much too wide in my
opinion). It expressly rejects "focus" as a criteria (without
mentioning Durant or the UK). Instead it says that to "relate to" it
has to be "about" someone, and the information is "about" someone if one
of three elements are present: "content", "purpose" or "result" .....
now this is where we get a little complicated and is perhaps a little
bit too much detail for readers of this forum (but if anyone is
interested, please let me know and I would be happy to send a client
update on the topic (ready in a couple of days)).
I have tried to work through the test as the working party sets it up in
this document to see whether on Durant-type facts it leads to the same
result, but actually found the test very hard to apply (I think a UK
court minded to get to the same result could in good faith apply the
test and not find personal data). It is unfortunate that of the many
examples given in the opinion, they could not have included a
Durant-type situation as an example. You can just about understand why
(as they cannot be seen to be overtly critical of the UK courts) but
then why did they even mention "focus" (which they did object to)?
The Opinion does contain other examples which would not have passed the
Durant focus test (Example No 6, say) but which they say constitute
personal data.
In short, however, it leaves the UK in an uncertain position. The WP is
clearly a serious and respectable body whose views matter; but their
opinion is just that, an opinion. Durant remains law in the UK until
the UK courts (or the ECJ) say otherwise; or unless the Government
brings in amending legislation (unlikely, although possible given the
communication (confidential) between the European Commission and the UK
on the UK possibly failing to comply with the Directive on this (rumour
has it) and other grounds).
The UK ICO sits on the Working Party. Opinions can be issued only on
majority agreement. The WP's deliberations are confidential, but the UK
cannot have had an easy time of it. (Oh to be a fly on the wall: I
imagine he would have voted against this part or abstained! But that is
just a guess.) I think he is left in a position that if an individual
complains on facts which would not have stood up to the Durant, "focus"
test but would pass through this test, he is left with no option but to
say: sorry, can't help you, you need to go to Court to challenge Durant
.......
Renzo Marchini
Dechert LLP
+44 (0) 20 7184 7563 direct
+44 (0) 20 7184 7001 fax
[log in to unmask]
www.dechert.com
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Nick Landau
Sent: 16 July 2007 17:30
To: [log in to unmask]
Subject: Re: [data-protection] Def of Personal Data by the Article 29
Working Party
This is actually from the
EU ARTICLE 29 DATA PROTECTION WORKING PARTY
01248/07/EN
WP 136
"Opinion 4/2007 on the concept of personal data"
which is originally published by the EU at
http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2007/wp135_en.p
df
I would be interested as to why Statewatch have republished the report
as
their own rather than given a link to the EU report.
Setting that aside, can someone comment on how it applies to Durant -
for
those of us less familiar with the case.
Nick Landau
Nick Landau's Profile on LinkedIn.com
http://www.linkedin.com/in/nicklandau1
The Numbers Game
http://uk.geocities.com/nicklgreen/Nos_Game
----- Original Message -----
From: "Chris Brogan" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, July 16, 2007 11:05 AM
Subject: Re: [data-protection] Def of Personal Data by the Article 29
Working Party
For those of you who don't subscribe to Statewatch I think you may find
the following paper of interest.
http://www.statewatch.org/news/2007/jun/wp-136.pdf
I thought I might send this article to Lord Auld (Durant Case) but don't
really have the bottle.
Chris Brogan
Managing Director
Security International Ltd
130 St Johns Road, Isleworth, Middlesex TW7 6PL, UK
Tel: +44 20 8847 2111 Fax: +44 20 8847 1852
Registered in England & Wales No. 1322074
Registered Office: 11 Loveday Road, London W13 9JT
www.securitysi.com
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