New developments in applying data protection law to the media

One aspect of the Data Protection Commissioner's 2006 Annual Report that will be of acute interest to media lawyers is its application of data protection principles to media coverage of the glitterati and in particular the children of celebrities.

There is an inevitable tension between privacy rights in general (including data protection law) and the interests of the media - particularly when it comes to the insatiable public desire for information about celebrities. Section 22A(1) of the Data Protection Act attempts to resolve this tension by providing a limited exemption from the Act for certain media activities:

Personal data that are processed only for journalistic, artistic or literary purposes shall be exempt from compliance with any provision of this Act specified in subsection (2) of this section if—

(a) the processing is undertaken solely with a view to the publication of any journalistic, literary or artistic material,

(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, such publication would be in the public interest, and

(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision would be incompatible with journalistic, artistic or literary purposes.

This exemption incorporates a balancing test - the person publishing the information must reasonably believe that publication is "in the public interest" and that complying with the data protection principle at stake would not be compatible with their "journalistic, artistic or literary purposes".

The 2005 Annual Report indicated that the Data Protection Commissioner would not simply defer to an editor's decision that something was in the public interest:

While this section refers to the reasonable belief’ of the data controller, it does not, in my opinion, give a newspaper editor the sole discretion to judge if something is in the public interest. This point is perhaps more clearly expressed in Article 9 of the Data Protection Directive (95/46/EC) on which section 22A is based. This states that “Member States shall provide for exemptions or derogations from the provisions of (the Directive) for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”[emphasis added]

In the case of a complaint received by me, I must therefore judge if the data controller properly balanced the right to privacy with the public interest in disclosure. I must have regard to the nature of the facts, including whether the data relates to a public figure or a relative of a public figure, the age of the data subject and whether sensitive data within the meaning of the Acts is involved.

The 2005 Annual Report went on to say that this balancing exercise would be carried out in light of the European Court of Human Rights decision in Von Hannover and the relevant media codes of conduct, and that particular scrutiny would be applied in matters involving children under 16 where editors "should demonstrate the existence of an exceptional public interest in order to over-ride the normally paramount interest of the child."

These principles were applied in the 2006 Report to make two separate findings of a breach of the Data Protection Acts against the News of the World and the Sunday World. The facts of the News of the World case are typical:

I received a complaint on behalf of a data subject, a well-known individual, arising from material published in the News of the World (Irish edition) in 2005. The complaint related to the subject matter of the material published and the manner in which it was obtained. The material published consisted of a photograph of the data subject and child while shopping, together with related text expressly identifying the data subject's child by name and age, and referring to a third party's perception as to how parent and child were getting along. The complainant alleged that consent was neither sought nor obtained prior to the taking of the photograph. The complainant further alleged that consent was not sought nor obtained prior to the publication of the material subsequently in the News of the World newspaper. In particular, the complainant alleged that the publication contravened Sections 2(1), 2A (1) and 22 of the Data Protection Acts. The complainant considered that their right to privacy outweighed any purported journalistic purpose or public interest in the publication of their photograph and accompanying text which was the subject of the complaint.

The News of the World argued that the parent had, in the past, invited this attention and therefore there was a public interest in publishing. This was rejected, however, with the Data Protection Commissioner applying Von Hannover to find that there was no public interest in this case:

I am obliged by Section 3 of the European Convention on Human Rights Act, 2003, to perform my functions in a manner compatible with the State's obligations under the Convention's provisions. Accordingly, in arriving at my conclusion on the applicability of the Section 22A exemption to the facts of the case, I had regard to the provisions of Articles 8 and 10 of the European Convention on Human Rights and any guidance that the European Court of Human Rights (ECtHR) had provided on how the rights to privacy and freedom of expression should be balanced - the same balance that was at issue in relation to the applicability of Section 22A of the Acts.

In this regard, I noted the Decision of the ECtHR in the case of Von Hannover v. Germany (Application No. 59320/00) - the Princess Caroline case. The Court held that the German courts, in refusing to grant Princess Caroline of Monaco injunctions against newspapers taking and publishing photographs of her, had infringed her rights under Article 8 of the Convention. The photographs in question had shown Princess Caroline engaged in various activities such as shopping, playing sport and at the beach. The Court, noting that the material related exclusively to details of the applicant's private life, considered that "the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public." In that case, the Court considered that “anyone, even if they are known to the general public, must be able to enjoy a "legitimate expectation" of protection and of respect for their private life."

While data protection law is not specifically dealt with in the Von Hannover Decision, this case was of assistance in helping me to come to a decision as to the appropriate balance between the public interest in freedom of expression and the individual's right to protection of their personal data, as required by Section 22A of the Acts.

Section 22A(3) of the Acts provides that, in evaluating whether a publication would be in the public interest, regard may be had to codes of practice approved by the Data Protection Commissioner pursuant to the Acts. While no such code has been approved, it seemed appropriate, in reaching a determination, to take note of the newspapers' own codes of practice. In making my assessment, I therefore took account of the National Newspapers of Ireland Code of Practice. In relation to children, the Code provides that they should not be identified unless there is a clear public interest in doing so. Relevant factors are identified as the age of the child, whether there is parental permission, and whether there are circumstances that make the story one of public interest, "or, if the person is a public figure or child of a public figure, whether or how the matter relates to his/her public person or office." I also noted that the UK Press Complaints Commission Code of Practice provides that editors must not use the fame of a parent as sole justification for publishing details of a child's private life and that "in cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child”. I was of the view that these provisions represent a fair expression of how the principles of data protection legislation ought to be applied in relation to children and minors.

In coming to my decision, I also noted the allegation, which was not refuted by the data controller, that the photograph was taken without the consent of the data subject. I issued a Decision on this case under Section 10(1) (b) (ii) of the Acts. Among other things, I found that it did not appear to me that the public interest claimed by the data controller in publication of the material in question could be such as to justify setting aside the right to respect for a person's private and family life.

This decision is significant in a number of regards. From a practical point of view it creates a low cost and effective route for a complainant to allege an invasion of their privacy. It makes life significantly more difficult for the media - notably it goes much further than the UK Press Complaints Commission Elle McPherson decision. But it also changes the privacy landscape more generally. Until recently it seemed that privacy issues in the media would primarily be governed by the regulatory package to be implemented by the Privacy Bill 2006 and the new Press Council of Ireland. With the lapse of that Bill (and its uncertain prospects in the new Oireachtas) the Data Protection Commissioner may end up assuming, by default, a role which that Bill had envisaged for the courts. A great deal will depend on whether the Commissioner is willing to leave these complaints to be dealt with by the Press Council - and that in turn will probably depend on how effective the Press Council proves itself to be.

Creative Commons Ireland goes live

Darius Whelan and Louise Crowley at UCC have been working hard on localising the Creative Commons licences for Ireland, and they've now launched a Creative Commons Ireland site with a draft Irish licence. Eoin O'Dell has more on why this matters.

Private use of public information - using public records for marketing

Suppose you are a direct marketer. You learn that all sorts of interesting and lucrative personal data must be made public by State bodies. (For example, the Companies Registration Office must provide details of company directors.) Can you use that information for marketing purposes? Can you package and resell that information to others?

The 2006 Annual Report of the Data Protection Commissioner includes a guidance note which goes into this in detail. The crucial point is that although the Data Protection Acts don't apply to disclosure by state bodies of information which must be made available to the public, they do apply once that information passes into the hands of a third party (such as a marketer). Consequently, if you wish to reuse that information, you must notify the individuals concerned in advance and you must give them a cost free opportunity to opt-out from having that information used for direct marketing.

Full guidance note:

Guidance Note on the Use of Publicly Available Data for Direct Marketing

Last year my Office was contacted by a number of people who had received direct marketing material by post as a result of the publication of their names and addresses on various lists and registers. The authors of these lists and registers were obliged to make them available to the public under law. For example, the Companies Registration Office must make its Register publicly available. Similarly, planning authorities must publish a weekly list of planning applications and planning decisions. All of these documents contain personal data. Section 1(4)(b) of the Data Protection Acts provides that the Acts do not apply to personal data consisting of information that the person keeping the data is required by law to make available to the public. A key point here is that the exemption from data protection requirements only relates to the information in the hands of those public bodies that are obliged to make it available. Any other entity seeking to use such information once in the public domain must comply with the standard requirements of data protection.This is a point that my Office needed to highlight on a number of occasions and I am glad to say it was readily accepted in all instances by those entities in receipt of the advice.

As a result of the level of complaints made to my Office on this issue, I was asked to provide guidance on the re-use of personal data contained in publicly available documents. Set out below, as an example, is the text of an information note which I provided as guidance to the Companies Registration Office:

This information note sets out the position of the Office of the Data Protection Commissioner on the re-use of personal data contained in information in the CRO Register which the CRO is obliged by law to make available to the public. The published information contains "personal data" and each living individual is a "data subject" within the meaning of the Data Protection Acts, 1988 & 2003. Accordingly, the recipients of this information are "data controllers" within the meaning of those Acts. If those data controllers intend to use or further process this personal data in any way, they should be aware of the following Data Protection requirements:

Personal data must be processed fairly. Section 2D (1) (b) of the Data Protection Acts obliges a data controller to ensure, as far as practicable, that the data subject has, is provided with, or has made readily available to him or her, at least the following information not later than the time when the data controller first processes the data or, if disclosure of the data to a third party is envisaged, no later than the time of such disclosure:

● the identity of the data controller
● if he/she has nominated a representative for the purposes of the Act, the identity of the representative
● the purpose(s) for which the data are intended to be processed
● any other information which is necessary to enable processing in respect of the data to be fair to the data subject
● the categories of data concerned
● the name of the original data controller.

The Office of the Data Protection Commissioner considers that it would be reasonable for data controllers to meet these requirements as the information in their possession contains the contact addresses of the data subjects concerned.

In addition, in accordance with Section 2(8) of the Data Protection Acts, a data controller who anticipates that the personal data within the CRO published information, for which they are now the data controller, will be processed for the purposes of direct marketing must offer those persons whose data will be so processed a cost free opportunity to object in advance to receiving direct marketing. This applies both to data controllers who intend to use the personal data for direct marketing potential customers and to data controllers who intend to process the personal data for distribution to third parties for direct marketing by the third parties.

The Office of the Data Protection Commissioner considers that there is no scope for data controllers to target for direct marketing purposes those individuals whose personal data has come into their possession in this way without first having applied this procedure.

Furthermore, data controllers who may have intentions of processing the personal data by placing it on a website (in any format) should be aware that such processing does not meet any of the conditions set down in Section 2A of the Data Protection Acts (processing of personal data) as there is no consent from the data subjects for such processing of their personal data.

The Office of the Data Protection Commissioner holds a strong position on this matter. The Office cannot envisage any case where the processing of personal data obtained in this way is necessary for the purposes of the legitimate interests pursued by the data controller. Such legitimate interests must be balanced with the fundamental rights and freedoms of the data subjects themselves. The Office considers that this balance is not reflected in the posting of such personal information on a website.

Data Controllers who fail to comply with all of the requirements set out above may be deemed to have breached the Data Protection Acts. Breaches of Data Protection legislation may be reported to, and investigated by, the Data Protection Commissioner. Where the Commissioner forms the opinion that a data controller has contravened or is contravening a provision of the Acts, he may use the enforcement powers conferred on him under the Acts. This includes the power to require a data controller to destroy the database concerned.

A day in the life of the surveillance society

The Data Protection Commissioner's Annual Report, following the lead of his English counterpart, has a very interesting account of a day in the life of our surveillance society and how we can expect it to make terrorist suspects of law abiding individuals:

A Day in the Life

07:00 Annie Wun wakes up and turns on her computer to access the internet. She begins by checking the news using her account on an on-line news source. She had checked the privacy policy of the website before registering and was satisfied with the uses made of her data.

07:15 Annie searches for some personal items online. The searches together with her IP address (a unique address assigned to Annie's PC by her internet service provider (ISP)) are recorded and retained by the ISP for an unknown period of time and without a specified purpose. Searches made by Annie are also retained by the search engine and sometimes clearly used for targeted marketing purposes.

07:30 Annie phones her father to talk about a story on the news. The record of her call to her father is retained by her phone provider for a period of 3 years as required by law. It will be available to An Garda Síochána (and hopefully nobody else) should the need arise as part of any criminal investigation.

08:00 Annie leaves her house and drives to work. She passes through a toll booth using her easy travel card. Information is stored about the time her car passes through the booth and other booths along the journey each time. Again this information is retained and may be accessed for law enforcement or other purposes.

09:00 Annie reaches her workplace. CCTV cameras record her arrival as her employers are concerned about the security of the workplace. The use of CCTV was communicated to employees in advance of implementing the system and it was made clear to them that images from the system would only be used for security purposes and would be kept safe and secure.

Annie's employers were also concerned about their ability to properly track their employees in terms of time worked in the workplace so, after considering many options, they introduced a biometric thumb print clock-in system which records each employee each time they enter and leave the workplace. Annie was concerned that such a system was a bit intrusive into her personal space but most of her colleagues seemed unconcerned so she went along with it. There are no details available to Annie as to what other uses her employer might make of the information or indeed what security is in place to protect her personal data stored in the system.

09:15 Annie logs onto her email to check for any emails received. She has received a number of work related emails which require her attention and one personal email. Her employer has an email and internet usage policy in the workplace stating that some limited personal use of these facilities is permitted but that inappropriate usage is not permitted. Annie understands that this means that her employer may check her emails and internet usage from time to time or in response to a genuine suspicion of inappropriate usage. However, her employer may not check her mail or internet usage on an ongoing basis since this would intrude on her legitimate, limited personal use of these systems.

11:15 Annie uses her coffee break to check her bank balance using her bank's on-line service. Her bank knows how much use she makes of her account and has credit-profiled her based on this use for a €10,000 loan which is offered to her upon log-in. She doesn't accept.

Annie had spoken to her younger brother the previous evening and agreed to send him some additional funds. He is back-packing around Europe. Annie chooses the fund transfer option. Her bank, in common with all other major financial institutions, uses the SWIFT exchange system for such transfers. It is not made clear to Annie that details of the transfer may be accessed by the US Government as part of its efforts to combat the financing of terrorism.

13:00 Annie pops out for lunch and visits her local supermarket to pick up some things for the house as she is planning a major spring clean at the weekend. She hands in her store card to collect loyalty points as part of the purchase. Her supermarket accesses her information to monitor her buying habits and offers some suitable products in her next mail shot. She doesn't mind as she personally doesn't care what the supermarket knows about her buying habits. She was, of course, recorded on the shop's CCTV system as she entered and exited the shop.

13:20 Annie visits her local library to return a self help book “Male and Female Chemistry” and takes out a book on building self esteem “Love Bomb People”. She uses her library card which stores her usage pattern on the local authority database.

13:45 Using her lunch-break, Annie phones the Revenue Commissioners to query her tax allowances. She gives her personal public service number (PPSN) to the person on the other end of the phone line. They use her PPSN to pull up her name and address and a complete record of her dealings with the Revenue Commissioners for the past number of years. This reveals that she is a member of a Trade Union (a fact that her employer is unaware of), pays her refuse charges and claimed a substantial amount in medical
expenses the previous year.

16:00 Annie has to leave work early today to attend hospital for an appointment with her specialist. Annie still suffers from pain from an accidental shotgun wound in her leg suffered in an accident while on her family farm 3 years ago. Upon arrival, she gives her details. Her full medical file is with her specialist. This is not a concern as she wishes this to be the case. She is also aware that her full medical history is entered on an electronic system in the hospital. She does not mind this either but assumes that her records are only accessed by those persons who need her information to treat her.

18:00 Annie arrives home. She picks up her post which arrived after she left the house in the morning. Her credit card company is offering her another loan and has increased the credit limit on her card (without her asking) based on their analysis of her usage. She has also received direct marketing from a company with which she had no previous dealings offering her services for the property for which she has just made a planning application. She is very surprised at this as the local authority had not informed her that her personal details would be made public as part of the planning process. She has also received an unwanted text message offering her similar services. She is also very surprised by this but remembers that her local authority had asked her for her mobile phone number as a means of contacting her.

19:00 Having eaten dinner, Annie logs onto the internet again and books a flight to New York (she will in fact have minor plastic surgery undertaken). In doing so, a large amount of her personal details, which she was required to make available to book the flight, will be made available to the US authorities, in advance of her travelling, as part of its security procedures. Using this information, an assessment will be made as to whether she poses a threat to US security. The airline, through on-screen information, had provided some details of this but Annie does not normally read all such optional information, so is not aware of this.

20:00 Annie receives a call on her mobile phone. She doesn't recognise the number but answers it in any case. Upon hearing her name the person hangs up and Annie thinks nothing more of it. Unknown to Annie, the person who had phoned her number by accident is suspected of criminal activity by An Garda Síochána. They will shortly make a formal request under the provisions of the Criminal Justice Act 2005 for all records of phone activity by that person. This will highlight that Annie's number was phoned. As a result, An Garda Síochána will also request all details of her mobile phone usage for the past 3 months to ascertain whether she is relevant to their inquiries. This will ultimately reveal that she is not but only after all her mobile phone usage - including her location when she made and received calls - is thoroughly examined. Annie finishes her day by watching Big Brother on television. Her personal data is not made available to anybody else for the rest of the day.

Surveillance Society?

Well, why would law-abiding Annie Wun have anything to worry about? Her daily life has been made easier by the use of modern technology and she has willingly shared her personal information to get these benefits. Then again, perhaps she should worry. What if the information retained about her were pulled together in one place? The profile which emerges, and the conclusions that could be drawn from it, might give her an unpleasant surprise. Step forward Annie Wun, terrorist suspect?

ANNIE WUN:

Internet News Search: Articles of Interest include “London Terrorists Charged” (internet records).
Web searches: Plastic surgery.
Fund Transfer: Made out to a male in Hamburg.
Medical records: Operated on for gunshot wound.
Criminal records/offences committed: Yes. (Two speeding fines)
Local Authority library files: A word search threw up two hits - “chemistry” and “bomb”.
Phone records: Call received from known criminal.
Shopping habits: Large variety of hazardous cleaning materials purchased.
Holiday plans: Travelling on a flight to New York next week.

Just how public should public information be?

There is a conflict between requirements that some personal information should be made public (such as the contents of electoral registers) and the data protection principle that the disclosure of personal information should be minimised. This conflict becomes acute when public files which were previously hard to access are put online. Is there a qualitative difference between personal information available on paper in a local authority office and that same information coming up as the result of a Google search? Does technology disrupt the balance between the competing interests of publicity and privacy?

This issue was dealt with in the Data Protection Commissioner's 2006 Annual Report

Local Authority: Minutes of council meetings
I received a complaint from a member of the public concerning the publication on a local authority's website of the minutes of the Council's monthly meeting. The complainant informed me that his name and address had appeared in the minutes of the meeting in the context of the sale of lands and properties under the Affordable Housing and Shared Housing Schemes. He expressed concern at the publication of his personal data in this way on a local authority website as well as the ensuing exposure of his personal data on search engines.

My Office contacted the local authority on this matter. We pointed to the important principle outlined in the Annual Report in 2003 that, even where there is legislation providing that information must be made available to the public, this may not always mean that it is appropriate to place such information on a website. On foot of my Office's intervention, the local authority took swift remedial action. It removed the document containing the personal data and edited it in such a way that all names and addresses included on it in respect of the Affordable Housing and Shared Housing Schemes were removed. The local authority also contacted one particular search engine that the complainant was concerned about and sought the deletion of the record from its cache. Finally, the Authority undertook to ensure that the website version of its minutes would, in future, be edited to prevent the disclosure of personal data.

This appears to be a sensible compromise in the individual case, but it leaves several issues open for the future. Strictly speaking, the Data Protection Acts have no application in this situation. (Section 1(4)(b) provides that "This Act does not apply to ... personal data consisting of information that the person keeping the data is required by law to make available to the public".) Consequently one might ask - if legislation requires that certain information be made public, is it appropriate that it should only be made public in a way which is particularly difficult to access? Will this create an unfair disparity in access? More sophisticated searchers will still be able to find the information they seek in person, while the general public who don't know of the availability of this information may be cut off. Should the law recognise different degrees of "publicity" in public information? Is there a parallel with developments in the European Court of Human Rights, where in cases such as Peck the Court is increasingly looking at the extent of the disclosure of personal information to see whether there has been an Article 8 violation?

For an interesting take on these issues in a US context, see Givens, Public Records on the Internet: The Privacy Dilemma.

Data Protection Commissioner 2006 Report Published

The Data Protection Commissioner has now published his 2006 Annual Report (Full text (PDF), summary).

There are several very important issues raised in that Report (including direct marketing by email, personal information which must be made public by law, and application of data protection law to the media) and I'll look at some of these in follow up posts.

A good day to bury bad news - Labour attempts to bury spiralling cost of ID cards

BBC News:

ID card cost rises above £5bn

The official cost of the ID card scheme has risen by £400m to £5.31bn, the Home Office says.

The figure was released as Tony Blair announced his departure, leading to claims from the opposition that the government was "burying bad news".

The Tories also say that the actual rise in costs, when expressed in 2007/08 prices, is £640m.

The Home Office say that figure is 'concocted' and the increase was due to staff and anti-fraud expenditure.

Amid the row about the actual rise in the cost of the scheme, the Tories and Lib Dems also say that the Home Office broke the law by releasing the updated costings a month later than they should have.

Under the Identity Card Act, the government must give an update on the costs of the scheme twice a year. The latest update was due on 9 April.

Hopefully the fiasco of UK identity cards will deter attempts to introduce them in Ireland.

"Mumsnet" case shows problems with forum liability for member comments

The Telegraph reports:

The controversial childcare expert Gina Ford today dropped her threat to sue the parenting website Mumsnet after a year-long dispute was settled out of court.

Lawyers for Ms Ford, author of The Contented Little Baby Book, agreed to halt legal action after the popular website agreed to pay a contribution of her costs and prevent “personal attacks” on the site.

The agreement brings to an end a bitter dispute that began more than a year ago.

Some of Mumsnets’ 60,000 members used messageboards to attack Miss Ford’s famously rigorous childcare methods.

A sarcastic comment last August accused her of “strapping babies to rockets and firing them in to south Lebanon”.

Ms Ford, 52, a strong advocate of routine, said the remarks amounted to “serious and offensive libel” and caused her huge distress.

She began legal proceedings against the site, which receives up to 15,000 internet posts a day.

Justine Roberts, the founder of Mumsnet, in turn accused Miss Ford of conducting a “menacing” campaign to stifle negative comment, which Ms Ford strongly denied.

But after a series of legal letters and an eight-week mediation period, both parties announced today that the dispute had been settled.

The exact terms of the agreement are confidential, but it is understood that Mumsnet has apologised and made a contribution to Gina Ford’s substantial legal costs to protect its individual members from legal action.

It has also agreed to abide by its own “personal abuse” policy, preventing members from making unnecessary attacks on individuals. The ban on discussing Miss Ford’s methods has also been lifted.

Cases such as this highlight the draconian nature of English (and Irish!) libel laws, which in effect require bulletin boards and other social sites to police the actions of their users or risk being crippled by the costs (let alone the damages) of a libel action. This is difficult enough on a low-traffic site, let alone one which receives 15,000 posts a day. Quite apart from the chilling effect on freedom of expression, this also presents a competitiveness problem - why set up operations in Dublin or London when you can avail of a much more publisher friendly jurisdiction in the United States?

[Update] The Mumsnet site has now put up its own perspective on these issues:

Like many other website publishers, we have long maintained that libel law has not caught up with the digital age with the result that freedom of expression is being unacceptably curtailed. Now that we have settled our long running dispute with Gina Ford, we intend to campaign energetically for a review of how libel legislation applies to the internet.

Put crudely, the current legal situation is the rough equivalent of trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach. Currently the law regards a bulletin board just as it does a newspaper or a book.

In fact the Law Commission, the body which advises the government on legislation, recognized this problem in 2002, warning that a rethink of defamation law was needed to protect freedom of speech online. At the time Hugh Beale QC, one of the law commissioners, warned: "When a website carries material to which someone objects - rightly or wrongly - it is often easier to complain to the ISP than to the author. The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention of Human Rights."

Since then, however, no changes have been made to the law governing defamation on the internet and we believe website publishers running bulletin boards now find themselves in a similar position to that described by Mr Beale. Faced with any complaint about a bulletin board posting, website publishers, frequently small businesses or individuals with limited resources, find themselves with little choice but to remove the posting, with obvious consequences for freedom of speech.

Mumsnet has this week written to the Department of Constitutional Affairs urging the government to reconsider this area in its forthcoming consultation on defamation.

In particular we have asked to government to address these points:

1. Does holding websites liable for postings by users on their bulletin boards have the effect of unacceptably curtailing freedom of expression?
2. Is a website which swiftly removes material following a complaint protected from liability for the posting? And how swift is swift?
3. Should the different nature of bulletin board communication be taken into account in assessing whether a complainant has been defamed? For instance if a single poster makes a defamatory comment but is immediately rebutted by a large number of users should the resulting thread be considered as defamatory? Or should there be a requirement to consider bulletin board conversations in the whole?

We would stress that we accept that individuals have a right to protect their reputations. However this right always has to be balanced against the rights of others to freedom of expression. At present we believe that this balance is not struck in the right place.

The E-Commerce Directive was intended to make online business easier by removing some of these liability fears. Unfortunately, it was drafted narrowly to apply to mere conduits (telecommunications providers), caching and hosting only. This appears to leave other online intermediaries (such as search engines, bulletin boards and content aggregators) out in the cold, unless they can bring themselves within the hosting defence. Might a bulletin board be able to rely on the hosting defence in respect of user posts? I have been unable to track down any discussion of this precise issue, but Lillian Edwards analyses a related issue in respect of eBay liability for user advertisements here.

UK Interim data retention measures published

The Register reports that the Home Office has published draft regulations to require data retention for the interim period before the data retention directive must be implemented. As with the current Irish law this will cover details of all calls made or texts sent, and also location data in the case of mobile phones. The Home Office proposes a twelve month retention period with discretionary cost reimbursement for affected telcos.

The telescreen: coming soon to a street near you

The Telegraph reports that:

Britain is already one of the most watched nations on earth and now "talking” CCTV cameras are to be installed in 20 areas across the country.

The loudspeakers will allow CCTV operators to bark orders at people committing anti-social behaviour.

As usual, Eric Blair was well ahead of Tony Blair:

'Smith!' screamed the shrewish voice from the telescreen. '6079 Smith W.! Yes, you! Bend lower, please! You can do better than that. You're not trying. Lower, please! That's better, comrade. Now stand at ease, the whole squad, and watch me.'

Eric Blair watched by Tony Blair

This is London takes a look at the pervasive surveillance surrounding George Orwell's former home:

According to the latest studies, Britain has a staggering 4.2million CCTV cameras - one for every 14 people in the country - and 20 per cent of cameras globally. It has been calculated that each person is caught on camera an average of 300 times daily.

Use of spy cameras in modern-day Britain is now a chilling mirror image of Orwell's fictional world, created in the post-war Forties in a fourth-floor flat overlooking Canonbury Square in Islington, North London.

On the wall outside his former residence - flat number 27B - where Orwell lived until his death in 1950, an historical plaque commemorates the anti-authoritarian author. And within 200 yards of the flat, there are 32 CCTV cameras, scanning every move.

Orwell's view of the tree-filled gardens outside the flat is under 24-hour surveillance from two cameras perched on traffic lights.

The flat's rear windows are constantly viewed from two more security cameras outside a conference centre in Canonbury Place.

In a lane, just off the square, close to Orwell's favourite pub, the Compton Arms, a camera at the rear of a car dealership records every person entering or leaving the pub.

Within a 200-yard radius of the flat, there are another 28 CCTV cameras, together with hundreds of private, remote-controlled security cameras used to scrutinise visitors to homes, shops and offices.

The message is reminiscent of a 1949 poster to mark the launch of Orwell's 1984: 'Big Brother is Watching You'.

Zooomr - Free pro photo hosting for bloggers

Zooomr are offering a free pro account to bloggers who host their images with them.

The only condition - you must host one of your blog photos with them. This is mine.

Up up and away Hosted on Zooomr

I'm very interested to see how Zooomr stacks up against Flickr. Unfortunately both have an annoying problem - try giving the url to somebody who isn't already familiar with the fun world of Web 2.0 naming. Chances are they'll end up at flicker.com, zoomr.com or zoomer.com - all of which are (now very valuable because of all the misdirected traffic) parked domains. In effect, Flickr and Zooomr have a self-inflicted typosquatting problem.

Blogger beware: Blog libel and privacy action settled for £150,000

The Guardian reports that an action by Martin Sorrell and Daniela Weber for libel and breach of privacy by way of email and blog has settled without admission of liability for a total of £150,000 - £120,000 to him, £30,000 to her. The level of the settlement (which included a nominal sum for the plaintiffs' costs) appears to reflect the plaintiffs' difficulty in linking the anonymous material to the defendants.

Background to the case:

Two former business partners of advertising boss Sir Martin Sorrell launched a "vicious" campaign against him on blogs and emails, a court heard today.

One of his former associates referred in a private email to the WPP boss as a "mad dwarf" and described the company's former chief operating officer in Italy as a "nympho schizo", the High Court in London was told.

Marco Benatti, WPP's former manager in Italy, and his lieutenant Marco Tinelli, were spurred to publish defamatory remarks after Sir Martin sacked Mr Benatti over allegations of financial irregularities at WPP's Italian business, Sir Martin's barrister said.

Opening his case at a libel and invasion of privacy trial, Desmond Browne QC said the two men had taken "countermeasures" against Sir Martin and WPP's chief operating officer in Italy, Daniela Weber. ...

The "counter-measures" against Sir Martin included a blog that appeared in March last year containing a "host of libels" against the WPP boss, Mr Browne said.

Although the blog was taken down after three days, another one appeared a month later, he said.

"The day that Sir Martin managed to get the blog taken down, Mr Benatti emailed his friends saying that blogs were like mushrooms, they sometimes pop up again the next time it rains," Mr Browne said.

"What could be a stronger pointer to Mr Benatti's knowledge of what was going on and his being the architect of the whole exercise than that email shortly after the blogs had been taken down suggested that blogs were like mushrooms?"

Mr Browne said the other "countermeasure" was a series of emails that included a "vicious Jpeg image grossly intruding into the privacy of Sir Martin and Ms Weber".

"Naturally it would be to intrude further to even start to describe them. We say Mr Tinelli was directly involved in the dissemination of that vicious image.

"There is no doubt that he felt just as bitterly towards Sir Martin and Ms Weber as did his boss, Mr Benatti. I say 'no doubt' because on the very morning of the day the images were sent out by email he referred to them as the mad dwarf and the nympho schizo."

Mr Browne said that the two men had taken "elaborate steps to cover their tracks" but that computer evidence implicated them.

Data Protection Commissioner Guidance on CCTV in the Workplace and Biometrics in Schools

The Data Protection Commissioner has given two important guidance notes on the use of cctv in business premises and the use of biometrics in schools. In both case the guidance is very protective of privacy rights.

Significantly, the biometrics guidance takes a different approach to that recently adopted in England. The English approach has been to accept that once a minor is mature enough to give an informed consent to the use of biometrics in schools, parental consent is no longer required. Under this guidance, however, parental consent will always be necessary in the case of a minor, and if the minor is aged twelve or above they must also consent:

In the context of students attending a place of education, the Data Protection Commissioner would stipulate that the obtaining of consent is of paramount importance when consideration is being given to the introduction of a biometric system. It is the Commissioner’s view that when dealing with personal data relating to minors, the standards of fairness in the obtaining and use of data, required by the Data Protection Acts, are much more onerous than when dealing with adults. Section 2A(1)(a) of the Data Protection Acts states that personal data shall not be processed by a data controller unless the data subject has given his/her consent to the processing, or if the data subject by reason of his/her physical or mental incapacity or age, is or is likely to be unable to appreciate the nature and effect of such consent, it is given by a parent or guardian etc. While the Data Protection Acts are not specific on what age a subject will be able to consent on their own behalf, it would be prudent to interpret the Acts in accordance with the Constitution. As a matter of Constitutional and family law a parent has rights and duties in relation to a child. The Commissioner considers that use of a minor’s personal data cannot be legitimate unless accompanied by the clear signed consent of the child and of the child’s parents or guardian.

As a general guide, a student aged eighteen or older should give consent themselves. A student aged from twelve up to and including seventeen should give consent themselves and, in addition, consent should also be obtained from the student’s parent or guardian. In the case of children under the age of twelve, consent of a parent or guardian will suffice. All students (and/or their parents or guardians as set out above) should, therefore, be given a clear and unambiguous right to opt out of a biometric system without penalty. Furthermore, provision must be made for the withdrawal of consent which had previously been given.

Two aspects of this guidance may be significant in the future - in requiring a double lock (both parental and child consent) is there a possibility of a knock on effect in the area of marketing to children? (Where previously the consent of a child mature enough to give an informed consent would have sufficed.) Also, in imposing a strict test for determining when the use of biometrics is proportionate or necessary in education, will there be an impact on the use of biometrics in other sectors?

The Register has a good discussion of the biometrics guidance note here. I've previously blogged about this issue here.

Blogger beware - legal issues facing Irish bloggers

Many thanks to the IIA and Fleishman-Hillard for hosting a session on Blogging, New Media, Business and the Law. My presentation on issues such as defamation, contempt of court, copyright and privacy (ppt file) is available here and Brian Greene has podcast the event here. Tom Murphy gave a very interesting presentation on online marketing, and he's blogged about the event here.

Function creep in action: Mobiles may be checked after crashes

The Telegraph reports that the English government proposes to use data retention to enforce the ban on mobile phones while driving:

Motorists face having their mobile phone records checked after a routine accident, under proposals unveiled by the Government yesterday...

In the review the Department for Transport paper says: "We will look at ways to make it easier for the police to be able to follow the process of investigating whether mobile phone use was a contributory factor in an accident and thus prosecute more offenders."

According to police sources this would entail lowering the seniority of both the officer who can check the records and the threshold of the severity of the accident.

Where the use of a phone is suspected to have been a cause in the accident, it is straightforward to check when calls were received or made, irrespective of whether the call was made on a hands-free or hand-held device.

If the phone were destroyed, police would, under the proposals, be able to use call records.

Remember - data retention was sold on the basis that it was necessary to prevent terrorism and serious crime.

Data Retention in Ireland - stealth, bad faith, and contempt for the democratic process

I've written a brief article for Data Protection Law and Policy on the development of data retention in Ireland. As you'll guess from the following excerpt, I'm not impressed with the way in which it's been passed into law.

"The history of data retention law in Ireland has been marked by stealth, bad faith, and a shocking contempt for the democratic process. The 2002 Direction in particular stands out as an attempt to make law in secret, by the abuse of an unrelated statutory power, and then to stymie any judicial review by directing the recipients of the Direction to remain silent as to its existence. Moreover, when finally forced by the Data Protection Commissioner to proceed by primary legislation, the Department of Justice did so in 2005 without notice, in a way calculated to exclude any public scrutiny, and ignoring earlier assurances that draft legislation would be published and debated."

PDF of the article here.

.ie Domain Disputes Multiply

The amusingly named I squatted your .EU mentions some recent .ie domain decisions from WIPO, including the adidas.ie, and buy-sell.ie decisions.

There have been 10 complaints lodged with WIPO under the .ie Dispute Resolution Policy to date - resulting in four decisions transferring the domain to the complainant, three complaints which were terminated before decision (presumably because the respondent decided to voluntarily relinquish the domain), and just two complaints denied. Not a bad batting average for complainants.

More filesharing litigation coming to Ireland?

Last time it was the music industry. This time Hollywood? John Collins posts:

my home phone rang this morning with a little surprise for me. it was a representative of bt who asked me to confirm that i have a broadband service with them. when i said he did, he told me they had been contacted by paramount movies (as far as i can see there is no entity of this name, but who am i to split hairs) to say i was sharing a movie of theirs, an inconvenient truth. he asked me to remove it from my pc because if they didn't they could take further action.

Commission to make life easier for online businesses by streamlining consumer law

From The Register:

The European Commission will overhaul European contract law to make internet selling easier, more reliable and more efficient.

The commission has opened consultation on proposed changes that will affect eight EU Directives.

Recognising that e-commerce is hampered by a mass of conflicting national laws, the commission has proposed changes to Directives which it hopes will, when transferred into national laws, bring the law into line with technological developments.

'There is an urgent need for action, the world is moving so fast and Europe risks lagging behind', said Meglena Kuneva, the new EU Commissioner for Consumer Affairs, in her first press conference in Brussels. 'We need a root and branch review of consumer rules. At the moment, consumers are not getting a fair deal online, and complex rules are holding back the next generation of bright business ideas. We must find new solutions to new challenges.'

The commission believes that online businesses would benefit significantly if doubts about the legal implications of cross-border trading were removed.

'Consumer confidence is a key factor determining how and when consumers spend their money in different sectors of the economy,' said a Commission statement. 'All the evidence is that consumers are not yet comfortable enough in the digital and online world to seize its full potential. Only a tiny fraction – six per cent of EU consumers – are currently shopping online cross border.'

The commission will review all consumer contract law, which will involve a review of eight directives. They are: the Unfair Contract Terms Directive and the Directive on Sale of Consumer Goods and Guarantees; the Distance Selling Directive; the Doorstep Selling Directive; the Package Travel Directive; the Timeshare Directive; the Directive on Injunctions; and the Price Indication Directive.

Hopefully this will also review the areas of overlap between these directives and the E-Commerce Directive.

NTR Deal introduces number plate surveillance

'Invisible' toll part of €600m deal to buy out West-Link bridge - Irish Independent:

It is understood that NTR will be operating the toll on behalf of the State, which will effectively become the new landlord. This will involve photographing the registration of every vehicle and billing them unless they have a prepaid arrangement... Drivers are only tolled now if they cross the West-Link bridge. Under the new deal, everyone using the M50 will be charged.

Expect this to be used to justify the roll out of number plate recognition and the monitoring of all car journeys.

Garda leaks and the right to privacy

RTÉ News reports:

A family who were forced to leave their new home in Kerry because of the leaking of confidential information by gardaí to journalists have been awarded €70,000 in the High Court.

Alan and Phyllis Gray and their son Francis are originally from Blanchardstown in Co Dublin but moved to Ballybunion under the Rural Resettlement Programme.

They sued the Minister for Justice for breach of privacy.

They say they had to leave their home after gardaí leaked to the media that Mr Gray's nephew, who had served a sentence for rape, was staying with them.

This case follows the 1997 decision in Hanahoe v. Hussey where gardaí tipped off the media to the fact that a solictor's office would be searched under a search warrant, leading to a "media circus" when gardaí arrived with damage to the reputation of the firm, and ultimately resulting in an award of £100,000 in damages. In that case, the basis for the decision was that the wrongful and negligent disclosure of this information amounted to negligence under the principles in Ward v. McMaster. It's not clear from the media coverage whether the decision in this case goes further, or whether data protection principles were also considered. (Compare section 7 of the Data Protection Acts, 1988-2003, creating a duty of care in respect of the handling of personal data.)

It does, however, represent an interesting application of the Hanahoe v. Hussey principle that public bodies may owe you a duty of care to keep certain information confidential. It also reflects Hanahoe v. Hussey in that it shows a judicial willingness to impose vicarious liability in respect of unauthorised garda disclosures.

Update: Eoin O'Dell links to the full decision here with an interesting discussion of the issues involved.

Bar Camp talk - Who owns software?

Does your employer own software that you write on your own time at home? Can a client who commissions you to write software prevent you from reusing portions of that code for a different project? Are you entitled to modify software developed for you by an outside programmer? If you don't own copyright, will you have an implied licence to use software? Will an implied licence limit you to using software in a particular market sector or a particular jurisdiction? Does it matter how much you've paid for the software? Does it matter whether you've given / been given the source code? What about databases you commission from a third party?

Come to Bar Camp South East and find out. I'll be talking on the topic of "Who owns software?" - taking a practical look at the problems of determining who owns copyright and other rights in software and giving tips as to how you can protect your position.

[edited to add] I've since published an article dealing with these topics in more detail.

From "the innocent have nothing to fear" files - mortgage brokers selling financial information on buyers to estate agents

Unless you've been living on Mars recently, you'll have heard of the RTÉ Prime Time exposé of dodgy dealings in the property market. Amongst other things, that program revealed that estate agents are (illegally) buying information from mortgage brokers about prospective purchasers: how much they have to spend, how much they've received in mortgage approval, how much they might have from other sources (such as parental gifts). Unsurprisingly, they are using this to extract every last penny from purchasers.

Hopefully we'll remember this the next time somebody tries to tell us that if you've done nothing wrong, you've nothing to fear.

From "the innocent have nothing to fear" files - police kept record of beautiful women

Cops kept record of beautiful women - Peculiar Postings - MSNBC.com:

STOCKHOLM, Sweden - Two Swedish border control officers risk disciplinary action for keeping a photo collection of 'exceptionally beautiful' women who passed through their checkpoint, police officials said Tuesday.

The officers, who were working at a ferry terminal near Stockholm, made photocopies of the women's passport photos and placed them in a binder. They also noted the date of birth next to each entry, the Stockholm police department said.

The binder contained instructions on how to compile the collection, and orders to make backup copies in case the binder would go missing or be confiscated by 'evil-minded bores,' police said.

Irish law on metatags and keywords

I've written (together with Paul Lambert of Merrion Legal solicitors) a piece on the legal issues involved where businesses find their trademarks being used by competitors as metatags or keywords. The full article (with the kind permission of Thomson Roundhall) is available here. Excerpt:

As cybersquatting declines we find that trade mark owners now have to defend their names in a different context. As search engines become more sophisticated, users are tending to rely on them as their primary means of navigation. Rather than type in a domain name directly (or rely on a bookmark), many users will simply enter a term—such as a company name or product – into a search engine, expecting the site they are looking for to appear high in the list of results. Consequently, the importance of domain names is diminished and search engines take on a new prominence. As Nielsen puts it:

“Web users are growing ever-more search dominant. Search is how people discover new websites and find individual pages within websites and intranets. Unless you're listed on the first search engine results page … you might as well not exist.”

This poses a new problem for trade mark holders—what happens when a competitor uses their trade mark in such a way that a person searching for the term will be shown a competing site in the list of results, or will be shown an advertisement for the competitor? ...

At first glance the unauthorised use of trade marks as metatags or keywords might seem to be a clear infringement of the mark in question. The trade mark holder will certainly argue that the metatag or keyword improperly takes advantage of the goodwill in the trademarked term and confuses the user into believing that there is some link between the trade mark and the search results or advertisements displayed in response. It can also be argued that the search engine is itself guilty of infringement by selling the trademarked term as a keyword. In addition, the tort of passing-off may be available.

However, look more closely and the position becomes more complicated. Trade mark law was not drafted with metatags or keywords in mind, making it difficult to bring these situations within the legislative language. There will be some situations where the trade mark use is legitimate, for example, a company which manufactures spare parts for BMW cars might be entitled to use “spare parts suitable for BMW” in its metatags.

The likelihood of consumer confusion may also be less in metatag / keyword cases as the trade mark is being used “invisibly” — that is, in a way which is not directly visible to the user, reducing the likelihood that the user will associate the search result or the advertisement with the trade mark. If a search engine faces liability for selling trademarked keywords, it may be hard to determine whether that liability is direct or merely contributory. (Some cases suggest that the search engine should not be liable for the keywords chosen by its clients.)

In addition, some would argue that provided users are not confused, presenting advertisements for competing goods alongside search results is no more objectionable than a shop placing similar products in the same aisle.

Your personal information is for sale: Bank worker uses information to stalk model

From BreakingNews.ie:

A 27-year-old former bank official who harassed Irish model Glenda Gilson and her family has been given a three month suspended sentence and ordered to stay 100 yards from the victims.

Daniel Rooney, of Castleknock Cottages, Castleknock, pleaded guilty at Dublin Circuit Criminal Court, to harassment of the Gilson family by persistently communicating with Glenda Gilson and her parents Noel and Aileen Gilson by e-mail and telephone at various locations on dates between November 12, 2004 and March 21, 2005.

Defence counsel Mr Luigi Rea BL, said Rooney was underachieving at that time in his life and he had became "jealous and obsessed" about Miss Gilsons progress in her modelling career. He had used his computer skills to "obtain telephone numbers he should not have".

Judge Bryan McMahon said one should not under estimate the "sinister impact these calls from a unknown quarter" can have on their victims but said he would take the mitigating factors into account and treat this as an "aberration".

He said this case was a "a feature of modern technology and mobile phones and the access to people on these phones" and that it was "indicative of the personal data of all citizens" which corporations hold.

Garda Deirdre Conway told Mr Paul Carroll BL, prosecuting, that there had been 49 calls to the family over the five month period. She said the harassment began on November 12, 2004, when Miss Gilsons model agency, Assets, received a call and an e-mail purporting to be from a friend.

It soon became evident that the caller was using a false name as he started shouting abuse about Miss Gilson and her career. Miss Gilson later received abusive calls on the land line at her parents home and also on her mobile. Many of the calls made to Miss Gilson’s home were answered by her parents...

Mr Rooney worked for AIB at the time and had been able to access the phone numbers though his work.

Despite Judge McMahon's comments, I suspect that it will take many more cases like this before people realise the dangers of their private information being open to abuse.

Your personal information is for sale: Call centre edition

The BBC reports that

One in 10 of Glasgow's financial call centres has been infiltrated by criminal gangs, police believe.

The scam works by planting staff inside offices or by forcing current employees to provide sensitive customer details.

The information is then used to steal identities and fraudulently set up accounts or transfer money...

Det Ch Insp Derek Robertson of Strathclyde Police told the BBC's Newsnight Scotland programme that there were a large number of call centres in the Glasgow area...

"I would say approximately 10% have been infiltrated in the past and we are working very hard to reduce that number."

Detectives believe that criminal crews are sent out to recruit volunteers to work in the centres.

Once they agree, they are asked to supply financial information in return for a fee.

Another tactic is to identify pubs where call centre workers visit and intimidate the employees to pass on the details.

Det Ch Insp Robertson said: "There are a number of different ways to do it.

"We know of organised crime groups who are placing people within the call centres so that they can steal customers' data and carry out fraud and money laundering.

"We also know of employees leaving the call centres and being approached and coerced, whether physically, violently or by being encouraged to make some extra money.

"And of course you have the disgruntled employee who may turn their hand to fraud just to benefit themselves."

Expect data retention to be a goldmine for criminals.

UK rules requiring all pub-goers to be fingerprinted at the door

Words fail me. From The Register:

The government is is funding the roll out of fingerprint security at the doors of pubs and clubs in major English cities.

Funding is being offered to councils that want to have their pubs keep a regional black list of known trouble makers. The fingerprint network installed in February by South Somerset District Council in Yeovil drinking holes is being used as the show case...

The council had assumed it was its duty under the Crime and Disorder Act (1998) to reduce drunken disorder by fingerprinting drinkers in the town centre.

Some licensees were not happy to have their punters fingerprinted, but are all now apparently behind the idea. Not only does the council let them open later if they join the scheme, but the system costs them only £1.50 a day to run.

Oh, and they are also coerced into taking the fingerprint system. New licences stipulate that a landlord who doesn't install fingerprint security and fails to show a "considerable" reduction in alcohol-related violence, will be put on report by the police and have their licences revoked.

Edited to add:
Ralf Bendrath kindly posted a link to his detailed analysis of this measure.

Samizdata have an enlightening take on the abuse of regulatory authority behind these rules.

Your personal information is for sale: Italian telco in wiretapping scandal

BBC News has reports of an Italian scandal involving telecom company insiders:

Telecom Italia has been in the headlines in recent weeks
Italy's justice minister has started an investigation into whether government officials were involved in an alleged wire-tapping scandal at Telecom Italia.

The news comes a day after police said they had arrested 20 people as part of an investigation into the case.

Prosecutors say the spy ring taped the phone conversations of politicians, industrialists and even footballers.

Of course the information stored by the same telecoms companies under data retention won't be abused. Oh no. Perish the thought.

Godaddy caves in rateyoursolicitor.com case?

This is a fascinating development in the ever-entertaining rateyoursolicitor.com saga. American company blocks off access to 'rate your lawyer' site - Irish Independent:

"AN American domain name provider has suspended access to the controversial rateyoursolicitor.com website after an Irish High Court issued a court order to remove offensive material about a barrister from the site.

Godaddy.com, an award winning internet site, suspended access to the rateyoursolicitor.com portal within 24 hours of an injunction issued by Judge Michael Hanna.

Last Wednesday, Judge Hanna issued an order that defamatory material posted about Jayne Maguire, a barrister, on rateyoursolicitor.com must be removed with immediate effect.

Ms Maguire has claimed that John Gill, of Drumline, Newmarket on Fergus, defamed her by posting offensive remarks on rateyoursolicitor.com.

Mr Gill, chairman of the Victims of the Legal Profession Society, denied that anything concerning Ms Maguire was published or posted on the site.

Ms Maguire is seeking damages for defamation and privacy and an interlocutory injunction of the statements about her on the site which she says is administered by Mr Gill.

Godaddy.com have locked access to the site domain name until High Court proceedings are concluded. Lawyers acting for Ms Gill served notice on www.gmax.net, an American Internet Service Provider that is host to the site.

It had been thought that Godaddy.com was hosting the site which invites Irish people to rate their lawyers, however gmax.net has now been identified as the ISP and has received notice of the High Court proceedings.

Slashdot has some interesting comments. More on this when I get the chance - but if these reports are accurate I'll certainly be moving my own registrations and hosting from Godaddy.

Gardaí disclosing confidential information to media

This RTÉ News report is worrying, and reinforces the DRI complaint earlier this year about the leaking of mobile phone records by gardaí.:

"Garda Commissioner Noel Conroy is this afternoon to appoint a senior officer to investigate the circumstances surrounding the release of video footage to RTÉ News.

The footage, broadcast yesterday, features two men convicted of dangerous driving, videoing themselves driving at high speed on the N4, near Mullingar, Co Westmeath.

District Court judge John Neilan this morning requested the commissioner to commence an internal investigation.

Judge Neilan said his relationship with the force was deeply strained as a result of events this week.

Judge Neilan said he was appalled by the conduct of the garda officers in the case.

He said the case had first come before him in June and he was satisfied beyond any shadow of a doubt that one of the prosecuting officers had primed the media in respect of the case.

He said that since the tape from the camcorder found in one of the cars was not available to the court yesterday, the only evidence that was available was that as recounted by the Inspector at Mullingar District Court yesterday.

Judge Neilan also said that it was his belief that the evidence of the arresting officers was tainted and embellished by what they saw on the camcorder.

Charges withdrawn

He said that the prosecution had decided without indicating to the court or the media, which apparently had the inside track on the case, that it was withdrawing two of the charges.

Two of the charges related to the material which was used and retained on the camcorder.

The judge said the DPP did not give any reason to the court for not proceeding with those particular charges.

He said that the conduct of members of An Garda Síochána in discussing evidence and possibly releasing material which was intended to be used in the case yesterday was nothing short of scandalous.

Judge Neilan said that the material seized by gardaí was material which was under the authority of his court.

He warned members of the public to be cautious about what he called the hype surrounding this case, and he said that every member of the public should be aware that certain members of the gardaí are priming the media well in advance of any case being dealt with in accordance with the law.

Judge Neilan also said that certain members of the gardaí believe they have 'a God given right to undermine the cases of the DPP and generate as much hype and hysteria as they can'."

Digital Rights Ireland brings legal action over mass surveillance

The title says it all. Click here for full details and information on how you can support the action.

McGarr Solicitors and public access to court files

McGarr Solicitors have a new website which has two firsts for Irish solicitors - they're the first firm of Irish solicitors to have a blog (surprisingly Irish barristers have put down their quills and been to the front here), and (more significantly) they've been the first to make some court documents publicly available on their web site.

Court documents in Ireland currently exist in a legal limbo - although justice must be administered in public, the practice has been to limit access to the court file. This is so even though every document in the file might have been read out in open court, and even though there is no rule prohibiting disclosure of the contents. Consequently if you as a member of the public wish to see the papers in a case you are dependent on the good will of the parties. This is unlike other jurisdictions such as the United States, where it is generally presumed that court documents are public documents in the same way that the proceedings themselves are public. I've long felt that the Irish practice is far too restrictive, and it's good to see solicitors making it easier to view these documents.

Schools fingerprinting children - Data Protection Implications

It seems as though everybody wants to fingerprint your children these days. The latest issue is whether schools can fingerprint children without so much as a parental by your leave. The Register has a very interesting discussion of the data protection issues involved:

Parents cannot prevent schools from taking their children's fingerprints, according to the Department for Education and Skills and the Information Commissioner.

But parents who have campaigned against school fingerprinting might still be able to bring individual complaints against schools under the Data Protection Act (DPA).

DfES admitted to The Register that schools can fingerprint children without parents' permission.

This position has also been taken by the Information Commissioner, who interprets and enforces the Data Protection Act - the law privacy campaigners hope might be used to stop schools fingerprinting their children.

The Information Commissioner's Office (ICO) is drawing up guidance on the use of fingerprints for purposes other than law-enforcement. The guidance will say once and for all whether parents can prevent their children's fingerprints being taken.

David Smith, deputy Information Commissioner, said it was a complex issue that was still being worked out, but it was likely that parents did not have an automatic right to decide whether their children's biometrics could be taken by a school.

"The Data Protection Act talks of consent of the individual - essentially that's consent of the child," he said.

"Now there's a requirement that consent is informed and freely given. That will depend on the age of the child," he said.

Update: Spongebobb asks what the situation would be in Ireland. The Irish Data Protection Commissioner has given guidance on whether children can consent to the use of their personal information, though this doesn't specifically address this situation:

The minimum age at which consent can be legitimately obtained is not defined in the Data Protection Act, 1988.

Section 2A(1) of the Acts states that consent cannot be obtained from a person who, by reason of age, is likely to be unable to appreciate the nature and effect of such consent. Judging maturity will vary from case to case.

In the medical area, the GPIT Guide (www.GPIT.ie) suggests that an individual may be assumed to be competent to give consent for medical purposes on reaching the age of 16 years. Where the individual is below that age, consent may still be given, but this requires that the medical practitioner involved must assess whether a child or young person has the maturity to understand and make their own decisions about the handling of their personal health information. In relation to the right of access to health data, where the individual is below 16 years, it was recommended that the general practitioner should use professional judgement on a case by case basis, on whether the entitlement to access should be exercisable by (i) the individual alone, (ii) a parent or guardian alone, or (iii) both jointly. In making a decision, particular regard should be had to the maturity of the young person concerned and his or her best interests.

In the marketing area, where sensitive data is not involved, including on websites, a lower threshold may be permissible. For example, it is a matter for a company to judge if a 14 year old can appreciate the issues surrounding consent and to be able to demonstrate that a person of that age can understand the information supplied and the implications of giving consent. While care should be taken that a person under that age would not be enticed into a deception concerning his/her age, a clear statement that an age limit applies would normally suffice. Where the company becomes aware at a later date that a person has supplied false age-related information, then that data subject's details should be removed from the live site. Sufficient identifiers may be retained purely for the purpose of blocking future entry attempts by that individual.

Where the company accepts that an individual is a minor and are seeking parental consent, e-mail might not be the best medium, unless they can establish that the e-mail address is genuinely a parent/guardian's e-mail address. A postal address is more readily authenticated, though it still does not preclude a letter being addressed to a sibling.

The closest Irish precedent is a case involving a primary school which put the personal details of pupils on a website without parental consent. The Data Protection Commissioner took a dim view of this:

A parent contacted my Office to complain that the local primary school was publishing personal details of pupils on the school web site, without the knowledge or consent of parents. The details included photographic images of named individual pupils, as well as general details volunteered by pupils regarding their hobbies, likes and dislikes. The parent was concerned that the non-selective publication of children’s details in this way was inappropriate, and could expose the children to unnecessary risks. The parent had raised the matter with the school authorities and was very dissatisfied with the response she had received.

I immediately contacted the school principal to arrange that personal details relating to identifiable children would be deleted from the web site, pending an urgent meeting on this matter. At the meeting, the school principal explained that the web site had been set up several weeks previously in order to meet the educational needs of children in relation to computing. The pupils themselves had been quite positive about the development. Photographs of individual pupils in the junior and senior infants classes had been posted on the web site. Other pupils had been invited to contribute to the web site through other activities, such as filling out questionnaires giving personal information that would be of interest to pupils in other schools, both nationally and internationally. It was noted that the school web site had been given an award by an internet service company in recognition of its merit. As regards parental consent, the principal said that the new web site had been mentioned in a recent school newsletter, and that parents had been invited to come to the school to check it out for themselves.

I pointed out that section 2(1)(a) of the Data Protection Act requires that personal data "shall have been obtained, and the data shall be processed, fairly ". When dealing with personal data relating to schoolchildren, "fairness" in my judgement requires that the clear and informed consent of parents or guardians must be obtained before any use is made of the children’s data. This is particularly so where the use envisaged involves the posting of data on the worldwide web. The principal accepted these points and undertook not to post personal details of schoolchildren on the web site except with the express authorisation of a parent or guardian.

Of course, the children in this case were of primary school age and so unlikely to be able to give an informed consent. It leaves open the question of whether parental consent could still be required in respect of an older child.

Your personal information is for sale - HP spies on directors' home telephone calls

Newsweek has revealed that:

To catch a leaker, Hewlett-Packard's chairwoman spied on the home-phone records of its board of directors.

The confrontation at Hewlett-Packard started innocently enough. Last January, the online technology site CNET published an article about the long-term strategy at HP, the company ranked No. 11 in the Fortune 500. While the piece was upbeat, it quoted an anonymous HP source and contained information that only could have come from a director. HP’s chairwoman, Patricia Dunn, told another director she wanted to know who it was; she was fed up with ongoing leaks to the media going back to CEO Carly Fiorina’s tumultuous tenure that ended in early 2005. According to an internal HP e-mail, Dunn then took the extraordinary step of authorizing a team of independent electronic-security experts to spy on the January 2006 communications of the other 10 directors—not the records of calls (or e-mails) from HP itself, but the records of phone calls made from personal accounts. That meant calls from the directors’ home and their private cell phones. ...

The HP case specifically also sheds another spotlight on the questionable tactics used by security consultants to obtain personal information. HP acknowledged in an internal e-mail sent from its outside counsel to Perkins that it got the paper trail it needed to link the director-leaker to CNET through a controversial practice called “pretexting”; NEWSWEEK obtained a copy of that e-mail. That practice, according to the Federal Trade Commission, involves using “false pretenses” to get another individual’s personal nonpublic information: telephone records, bank and credit-card account numbers, Social Security number and the like. Pretexting is heavily marketed on the Web.

Typically—say in the case of a phone company—pretexters call up and falsely represent themselves as the customer; since companies rarely require passwords, a pretexter may need no more than a home address, account number and heartfelt plea to get the details of an account. According to the Federal Trade Commission’s Web site, pretexters sell the information to individuals who can range from otherwise legitimate private investigators, financial lenders, potential litigants and suspicious spouses to those who might attempt to steal assets or fraudulently obtain credit

The UK Information Commissioner has shown that "pretexting" is prevalent in the UK also, in his report "What Price Privacy? The Unlawful Trade in Confidential Personal Information". While we have no comprehensive report in respect of Ireland, it is likely that it is just as common here.

Incidentally, one of the most common misconceptions about privacy is that it's merely about trusting the government not to abuse its powers. This case illustrates that when you create vast databases, you have to cross your fingers and hope that there is no one else (such as your employer) with a motive to spy on you.

Update: It's now emerged that HP spied on journalists' telephone calls also. Particularly in the US, there's been media lethargy about privacy issues - hopefully there'll be more coverage of the issues as reporters realise that it may be their ox being gored.

Privacy: One law for them, one law for us

The Telegraph reports that "Celebrity children will get database privacy" in the Orwellian "Children's Index":

Children of celebrities will be given special safeguards in a new database that will store details of every child in England and Wales, it was disclosed yesterday. ...

Ministers said the contentious two-tier level of privacy will protect children of the rich and famous from intrusion.

Addresses and telephone numbers of celebrities will be removed from the database if, for example, their children are deemed at risk of kidnap.

But opponents of the £241 million Children's Index — a supposedly confidential system intended as an early warning system for children at risk of abuse — said the move underlined their concerns about its security.

In further embarrassment to the Government, an independent report commissioned by Parliament's Information Commissioner and due to be published next month, is understood to warn that the index is causing serious concern and is possibly unlawful.

There are fears that it does not comply with the European Convention on Human Rights and may contravene the Data Protection Act. ...

Files are held by many bodies on the 11 million children in England and Wales, but the index will link this sensitive information in one database accessible to hundreds of thousands of officials. ...

Lord Adonis, the education minister, told the House of Lords: 'Between 300,000 and 400,000 users will access the index. Children who have a reason for not being traced, for example where there is a threat of domestic violence or where the child has a celebrity status, will be able to have their details concealed.'

Robert Whelan, the deputy director of the think-tank Civitas, said Lord Adonis's remarks showed there were legitimate concerns about the security of the index.

'The Government is showing it has no confidence in this database,' he said.

'There have been all these assurances it is secure, but how can we believe them now? I will tell you who will be off the register — the Blairs' children. This is just politicians protecting their own.

'And how is the Government going to define celebrity? It is a very fluid term — an assembly of high-profile clergy, disgraced politicians, topless models, pop singers and reality TV contestants.' ...

But, in an interview for tomorrow's Channel 4 programme Your Kids Under Surveillance, Prof Ross Anderson, an author of the report sent to the Information Commissioner, expressed concern about security.

'There will always be bent insiders. If you connect all these systems up and if you've got over a million professionals needing to access this every day it will all get out.

'Paedophiles for example can use the database to find out which children in their neighbourhood are vulnerable and where they live.'

Yet another argument against ID cards - UK Edition

ID card fears as staff hack into Home Office database | This is London:

"Office staff are hacking into the department's computers, putting at risk the privacy of 40million people in Britain.

The revelation undermines Government claims that sensitive information being collected for its controversial ID Cards scheme could not fall into criminal hands.

The security breaches occurred at the Identity and Passport Service, which is setting up the National Identity Register to provide access to individuals' health, financial and police records as part of the £8billion ID card scheme scheduled to begin in 2008.

MPs and technology experts have expressed fears that the national register, which will store sensitive details of more than 40million people, will be a honeypot for hackers and identity thieves. Liberal Democrat

Home Affairs spokesman Mark Hunter said: 'These revelations show it is folly to put all the precious personal data of our citizens in one place.'

Personal information about every British passport holder - including their date of birth, mother's maiden name, address and photographs - is already held in the IPS computers.

A Home Office spokesman last night confirmed the IPS security breaches. He also confirmed that three staff involved had been sacked and a fourth had resigned before disciplinary procedures had concluded."

NY Times uses geolocation to avoid contempt of court

Times Withholds Web Article in Britain:

If Web readers in Britain were intrigued by the headline “Details Emerge in British Terror Case,” which sat on top of The New York Times’s home page much of yesterday, they would have been disappointed with a click.

“On advice of legal counsel, this article is unavailable to readers of nytimes.com in Britain,” is the message they would have seen. “This arises from the requirement in British law that prohibits publication of prejudicial information about the defendants prior to trial.”

In adapting technology intended for targeted advertising to keep the article out of Britain, The Times addressed one of the concerns of news organizations publishing online: how to avoid running afoul of local publishing laws.

“I think we have to take every case on its own facts,” said George Freeman, vice president and assistant general counsel of The New York Times Company. “But we’re dealing with a country that, while it doesn’t have a First Amendment, it does have a free press, and it’s our position that we ought to respect that country’s laws.”

Jonathan Zittrain, a professor of Internet governance and regulation at Oxford University, said restricting information fit with trends across the Internet. “There’s a been a sense that technology can create a form of geographic zoning on the Internet for many years now — that they might not be 100 percent effective, but effective enough,” Mr. Zittrain said. “And there’s even a sense that international courts might be willing to take into account these efforts.

Plans were made at The Times over the weekend to withhold print versions of the article in Britain, as well as news agency and archived versions.

But the issue of the Web was more complicated.

Richard J. Meislin, the paper’s associate managing editor for Internet publishing, said the technological hurdle was surmounted by using some of The Times’s Web advertising technology. The paper could already discern the Internet address of users connecting to the site to deliver targeted marketing, and could therefore deliver targeted editorial content as well. That took several hours of programming.

“It’s never a happy choice to deny any reader a story,” said Jill Abramson, a managing editor at The Times. “But this was preferable to not having it on the Web at all.”"

This sets an interesting precedent - if the NY Times is willing to filter content for one jurisdiction to avoid contempt of court problems, how long will it be able to avoid filtering for possible libel issues?

Yet another argument against ID cards - Australian edition

The Register reports:

Australia's identity card system was routinely searched for personal reasons by government agency employees, some of whom have been sacked.

Police are now investigating allegations of identity fraud resulting from the security breaches.

There were 790 security breaches at government agency Centrepoint involving 600 staff. Staff were found to have inappropriately accessed databases containing citizens' information. The databases are part of a massive federal Government smart card project which will link medical, welfare, tax and other personal data on Australia's 17m citizens.

AOL Searches Now Available Online

Hot on the heels of AOL's disclosure of private customer information, the AOL Search Database has put that information into a searchable format for the world to see.