Hi Lawrence



While I appreciate that point, the Court of Appeal judgment is clear on the subject of pecuniary loss (see paras 74 and 75), and the principle of stare decisis means any inferior court is bound by that.



http://www.bailii.org/ew/cases/EWCA/Civ/2007/262.html



Best wishes

Jonathan









On 1 Nov 2012, at 12:03, "Lawrence Serewicz" <[log in to unmask]<mailto:[log in to unmask]>> wrote:



Interesting point, but one that does not bear sustained examination. How does one prove financial damage in libel?  I think that clever lawyers will find a way to link the two trains of thought or create a hybrid especially relating to a breach.



In Johnson V MDU, his claim was dependent upon an unsustainable causal chain<http://www.5rb.com/case/Johnson-v-Medical-Defence-Union-(No.2)-(CA)>.  He claimed the improper processing, led to the loss of insurance cover, which in turn led to a loss of reputation.  The causal chain could not be sustained once the issue with the fairness of the processing was considered. Moreover, he could not show that the loss of coverage was the sole and unremitting cause of loss of reputation.  Immediate mitigating factors emerge, to whit someone could be worthy of a poor reputation for issues unrelated to the loss of coverage.



By its definition a data breach is unfair processing.  It would take a brave soul to explain to the magistrates that someone has suffered no pecuniary damages, when the contents of an excruciatingly private document (insert your worst privacy nightmare) relating to a vulnerable person, regarding an unfair processing associated with the breach. The magistrates may agree that there is no pecuniary damage, but they may consider other damage worthy of compensation.



Best,



Lawrence



From: Baines, Jonathan [mailto:[log in to unmask]]

Sent: 01 November 2012 10:32

To: Lawrence Serewicz; [log in to unmask]<mailto:[log in to unmask]>

Subject: RE: [data-protection] When will the first class action data breach suit reach the UK from the US?



The problems is proving damage under s13 DPA. Following Johnson v MDU absence of pecuniary loss will be fatal to any claim. With most breaches there's no obvious pecuniary loss.





Jonathan Baines

Complaints and Information Rights Officer

Legal and Democratic Services

Buckinghamshire County Council

Ground Floor, New County Offices

tel: 01296 383681





________________________________

From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz

Sent: Thursday 01 November 2012 10:21

To: [log in to unmask]<mailto:[log in to unmask]>

Subject: [data-protection] When will the first class action data breach suit reach the UK from the US?

Dear All,

I came across this article on Mondaq service<http://www.mondaq.com/unitedstates/x/203800/Data+Protection+Privacy/Class+Actions+Adding+to+the+Cost+of+Data+Breaches&email_access=on> and I thought it would be of interest to you.



In the US attorneys are seeing the chance to make some money (and get justice (of course)) for plaintiffs in class action suits based on large scale data breaches.



In a sense, this could add to the fine issue and generate a lot more pressure on organisations.  Not only do you have to worry about the regulator, now you have to worry about solicitors who will engage you in litigation to make some money.



I appreciate that the class action legislation is different in the UK, but I wonder how long it will be before it arrives.  I also appreciate that anyone can, if they can show damage, bring the case to the magistrates  per the ICO guidance.  However, I am not aware of anyone doing this on more than an individual basis.



I am very surprised that there are not more solicitors trawling for this type of business as there is money to be made.



Do you see this as a growth area, i.e. do you think we will see more legal actions for compensation or less?



Best,



Lawrence



Principal Information Management Officer

Durham County Council

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