Jon,
The key issue will be the context for the claim. In Michael's example, the person's privacy has not been invaded as they are responding to a statement someone made within a grievance witness statement. Perhaps it is an invasion of privacy to speak of other people or to write something of them in response to a grievance procedure as required by their terms of employment. I am not sure. However, in his example, the issue for the court will be the relevant legislation. The case could involve the DPA and it could involve defamation. I would suggest that the court might not engage the DPA as that is about the organisation rather than the individual making the statement. The organisation would be the data controller not the individual who made the statement.
Thus, if I understand your argument, is that the organisation would be liable for causing the distress by recording a "distressing" statement in a witness statement. I am not sure how that will work, but perhaps it will. Yet, that type of case seems to me, happy to be corrected, to be a problem of defamation rather than the DPA.
If the case that Michael described is an invasion of privacy that does not fall under the DPA then I would be curious to understand how it will be litigated. Is this a violation of human rights or is it a tort of misuse of private information? I am not sure how a statement in a grievance witness statement, that that the data subject reads later, is going to be misuse of private information especially if it is given as an honest opinion as part of a witness statement. Moreover, I am not sure recording the information is a contravention of the DPA as I cannot see the section or principle such a process would contravene.
In any case, we will have to await the trial to see what happens.
Best,
Lawrence
-----Original Message-----
From: Baines, Jonathan [mailto:[log in to unmask]]
Sent: 30 March 2015 16:05
To: Lawrence Serewicz; [log in to unmask]
Subject: RE: Damages for Distress
Defamation and data protection are two separate things. Defamation would not come into effect if someone brought a claim under the Data Protection Act 1998, unless the claimant pleaded it as well.
The level of distress and the compensation awarded will be a finding for a court to make on the evidence before it, and it won't do so with regard to principles of defamation law. See AB v MoJ for a recentish example of a distress award - £2250 http://www.bailii.org/ew/cases/EWHC/QB/2014/1847.html
n.b. that at 77 of Vidal-Hall the judges said "It is the distressing invasion of privacy which must be taken to be the primary form of damage (commonly referred to in the European context as "moral damage") and the data subject should have an effective remedy in respect of that damage."
Jon
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 30 March 2015 15:47
To: [log in to unmask]
Subject: Re: [data-protection] Damages for Distress
Michael,
I agree that the decision has serious potential consequences. I would be cautious though in considering whether the example you provided would constitute "distress" as the law regarding defamation, which would come into effect should someone take a legal action, would suggest that the criteria for that offence would need to be considered. In particular, someone may have an "honest opinion" about someone so that they are not defaming them or distressing them.
We had a case in which someone on an investigation recorded a person's relative as drunk at the meeting. The person complained about that opinion. In the ensuing investigation, of the investigation, it was found that was an honest opinion held based on the behaviour of the relative at the meeting.
I would like to see more on the judgement and the forthcoming trial to understand the role of distress and how it is to be defined relative to other legislation. There is one thing to claim that a person is distressed because their browsing data was captured by a company without letting them know and another to claim that a person is distressed because the organisation sent their medical history to the wrong person. I think the person in the latter is going to have an easier time than the person in the former all things being equal.
Best,
Lawrence
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