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
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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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