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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department & Anor v TLU & Anor  EWCA Civ 2217 (15 June 2018)
Cite as:  EMLR 24,  EWCA Civ 2217,  4 WLR 101,  WLR(D) 372
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE COULSON
| (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) HOME OFFICE
|- and –
Hugh Tomlinson QC and Sara Mansoori (instructed by Bindmans) for the Respondents
Hearing dates : 17 May 2018
Crown Copyright ©
LORD JUSTICE GROSS :
"1. The Home Office publishes quarterly statistics about the family returns process, the means by which those with children who have no right to remain in the United Kingdom are returned to their country of origin. As of October 2013 it comprised three phases: assisted return….; required return….., and ensured return…. The published statistics identify the number of families in each category and the outcome. They contained nothing which identified them or could have led to their identification.
2. The published statistics were based on a spreadsheet which contained two tabs. The first, a sheet with nothing but the statistics, whose publication was intended; the second a large spreadsheet with the raw data on which the first was based. The latter contained a substantial amount of personal and official details, including the name of the lead family member; his or her age and nationality; whether they had claimed asylum; the office which dealt with their case, from which the general area in which they lived could be inferred, and the stage which they had reached in the family returns process. I will refer to this as 'the spreadsheet'.
3. On Tuesday, 15 October 2013, the Home Office published family return process statistics, for the period 1 April 2013 to 30 June 2013, by uploading them onto the UKBA website on a page headed 'Key Data on Family Return Process'… "
"By error, the page on which this was displayed contained a further link to the spreadsheet. It contained details of 1,598 lead applicants for asylum or leave to remain. It is common ground that clicking onto that link would automatically download the spreadsheet onto the inquirer's computer."
"10. …subject to proof, damages are recoverable by these claimants for 'distress' at common law and that, unless the judgement of the Court of Appeal in Vidal-Hall v Google Inc….is overturned or qualified by the Supreme Court, I am bound to hold that damages for distress are also recoverable by them under s.13 of the Data Protection Act 1998."
i) TLT, TLU and TLV arrived in the United Kingdom, lawfully, in 2010. Their home in Iran was searched and their personal belongings and documents were seized. Thereafter, they claimed asylum here.
ii) Their (then) 17 year old son had arrived with them. On turning 18, he claimed asylum on his own account. That claim was rejected and he was removed to Iran in 2012. TLT and TLU heard from relatives in Iran that he (the son) had been detained and tortured – and released after paying a bribe.
iii) TLT was notified of the data breach on 12 January 2014.
iv) At the time the spreadsheet was published, TLT, TLU and TLV were appealing the Home Office's initial refusal to grant them asylum. They thus all faced the threat of removal to Iran, if their asylum claim was unsuccessful. (In the event, in May 2014, their appeal was successful.)
v) In March 2014, TLU received messages from a family member in Iran, reporting that another family member had been detained by the Iranian authorities and questioned about "you". It was said that the Iranian authorities claimed to have documents showing that TLT and his family had claimed asylum. TLT and TLU were asked by another family member to supply copies of their identity documents and passports and they did so, whereupon the family member (who had been detained) was released. As the Judge observed (at ), this was consistent with the fears expressed by and the belief of, TLT, TLU and TLV, that the Iranian authorities had accessed the information on the spreadsheet published by the Home Office. Importantly, the Judge went on to say this (loc cit):"Their belief is genuine and it is not irrational. It is not far-fetched that a well-resourced Iranian intelligence agency would monitor UK Government websites by the simple expedient of refining any search by reference to the nationality of those referred to, Iranian. It was not irrational for TLT, TLU and TLV to believe that the Iranian intelligence agency might have been able to match up their details on the spreadsheet with those held in one of their own databases."
vi) TLT's and TLU's concerns led the family to relocate from the area in which they had lived for some four years, with inevitable disruption – which would not have occurred but for their concerns as to the consequences of the disclosure.
vii) The Judge observed (at ) that the effects of the disclosure on TLT and TLU had been "serious":"…. At a time when they had not been recognised as refugees TLT and TLU feared genuinely for their own safety if returned to Iran like their son. They genuinely believed that their security while in the United Kingdom was compromised….. In addition, they had genuine and not irrational fears for the safety of their relatives….in Iran….. To describe the totality of their experiences as 'distress' is a misstatement and an understatement, and I use the word only because it is the label under which damages are assessed in cases of this type."
viii) TLV's position was different, in that she was protected by her youth and (at ) "by the care which her parents took to shield her from knowledge of what was happening". Even so, she experienced "genuine concern", together with the disruption already described.
"12. …The family returns process had, as its object, the return of families with children under 18 who no longer had leave to be in the United Kingdom to their country of origin. The data collected related to that process. It was collected under the name of a lead applicant, in this case TLT….but it applied to all of them. The fact that they had claimed asylum with TLT was just as much private and confidential information about them as it was about him. Their identity could readily be inferred from his name, as could the general area in which, like him, they lived in the United Kingdom. Further, the Home Office held personal data similar to that held about TLT."
"14. This data was 'used' and therefore processed by transferring some of it – the fact that TLT had family members, including children who had claimed asylum and had reached a particular stage in the family returns process – to the spreadsheet. It was then further processed by the disclosure produced by the posting of the spreadsheet to the Home Office website. Anyone with knowledge of the family, by reference to TLT's name, would be able to identify them. They were not anonymised or, in Scots legal terminology, 'Barnardised', so as to render dissemination of statistical information about them permissible because it was no longer personal data….. The processing of data in the name of TLT about his family members was just as much the processing of their personal data as his. Further, and for the same reasons, such processing also misused their personal and confidential information. TLU and TLV are therefore entitled to bring their claims and to be awarded damages, if appropriate, as is TLT on the same legal basis as him."
i) Did the spreadsheet contain TLU's and TLV's private and/or confidential information? ("Issue I: Misuse of private information/breach of confidence")
ii) Did the spreadsheet contain TLU's and TLV's personal data? ("Issue II: Personal data")
iii) Even if the information on the spreadsheet did not contain TLU's and TLV's personal data (but only that of TLT), are TLU and TLV, in any event, entitled to damages for the distress they suffered under s.13 of the DPA for the admitted contravention of TLT's rights under the DPA by the Home Office/SSHD? ("Issue III: TLU's and TLV's entitlement to damages under s.13 of the DPA")
THE LEGAL FRAMEWORK
" (26) Whereas the principles of protection must apply to any information concerning an identified or identifiable person; whereas, to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the person; whereas the principles of protection shall not apply to data rendered anonymous in such a way that the data subject is no longer identifiable…."
" Article 1
Object of the Directive
1. In accordance with the Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.
For the purposes of the Directive:
(a) 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly……
Without prejudice to any administrative remedy for which provision may be made….Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.
1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered…."
"…information which –
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose;
(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d); "
A "data subject" means "an individual who is the subject of personal data". In turn, "personal data" means:
" …data which relate to a living individual who can be identified –
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller… "
"(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if –
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes."
ISSUE I: MISUSE OF PRIVATE INFORMATION/ BREACH OF CONFIDENCE
" ….the Spreadsheet did contain information that related to and was about TLU and TLV, including the fact that they had made an application for asylum; when that application had been made; the general area where they were living; and details about their status in the Family Returns Process. They had a reasonable expectation of privacy and confidence in respect of their information in the Spreadsheet. There is no need for them to show that they were 'identifiable' by third parties from the information and, in any event, as found by the Judge, they were. The erroneous publication of it on the Home Office website was a misuse of their private and confidential information."
"2. Historically, one of the main limitations on the power of the state was its lack of information and its difficulty in accessing efficiently even the information it had. The rapid expansion over the past century of man's technical capacity for recording, preserving and collating information has transformed many aspects of our lives. One of its more significant consequences has been to shift the balance between individual autonomy and public power decisively in favour of the latter. In a famous article in the Harvard law Review for 1890 ('The Right to Privacy', 4 Harvard LR 193), Louis Brandeis and Samuel Warren drew attention to the potential for 'recent innovations and business methods' to undermine the autonomy of individuals, and made the case for the legal protection not just of privacy in its traditional sense but what they called 'the more general right of the individual to be let alone'. Brandeis and Warren were thinking mainly of photography and archiving techniques. In an age of relatively minimal government they saw the main threat as coming from business organisations and the press rather than the state. Their warning has proved remarkably prescient and of much wider application than they realised. Yet although their argument was based mainly on English authority, the concept of a legal right of privacy ….fell on stony ground in England. Its reception here has been relatively recent and almost entirely due to the incorporation into domestic law of the European Convention on Human Rights."
"51. The result…has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information…..the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people. "
ISSUE II: PERSONAL DATA
"27. …the purpose of s.7 [DPA], in entitling an individual to have access to information in the form of his 'personal data' is to enable him to check whether the data controller's processing of it unlawfully infringes his privacy and, if so, to take such steps as the Act provides….to protect it. It is not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved. Nor is to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties. As a matter of practicality and given the focus of the Act on ready accessibility of the information ….it is likely in most cases that only information that names or directly refers to him will qualify. In this respect, a narrow interpretation of 'personal data' goes hand in hand with a narrow meaning of 'a relevant filing system'….But ready accessibility is not the starting point.
28. ….not all information retrieved from a computer search against an individual's name or unique identifier is personal data within the Act. Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject's involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person's or body's conduct that he may have instigated. In short, it is information that affects his privacy…..A recent example is….that 'personal data' covered the name or a person or identification of him by some other means, for instance by giving his telephone number or information regarding his working conditions or hobbies. "
i) The reference to "a continuum of relevance or proximity to the data subject" highlights the fact sensitive nature of the decision.
ii) The question of whether the information was "biographical in a significant sense" admits of only one answer in the present case – as much with regard to TLU and TLV as it did with regard to TLT. In the context of immigration and asylum, it is difficult to think of information which might have been more "biographical" than that which the spreadsheet contained with regard to TLU and TLV, other than naming them in terms.
iii) The question of "focus" cannot sensibly be taken to mean that only a single individual can be in focus. Instead, it again contemplates a "continuum" or spectrum. In the present case, involving a family returns process, it seems manifest to me that TLU and TLV were as much in "focus" as TLT, with whom they shared the same file number allocated to their case. If the position was otherwise, it is not at all apparent why TLT would have been the "lead" claimant for the family. On any view, as Mitting J observed when refusing permission to appeal, the data had "…anyone identified by reference to TLT as its focus….".
"…a member of staff asked to locate personal data relating to an individual asylum applicant in a family returns process who carried out a search in relation to TLU or TLV, using the reference number common to the family's case, would inevitably turn up the raw entry in respect of TLT as lead applicant and therefore the data in relation to the whole family… "
ISSUE III: TLU's AND TLV's ENTITLEMENT TO DAMAGES UNDER S.13 OF THE DPA
"The processing of data in the name of TLT about his family members was just as much the processing of their personal data as his. Further, and for the same reasons, such processing also misused their personal and confidential information."
LORD JUSTICE McFARLANE:
LORD JUSTICE COULSON: