Durant - Another opportunity missed!

Durant recently petitioned to the UK House of Lords against the Court of Appeal decision, which limited the scope of the definition of "personal data". The Court held that the '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.' In explaining the definition of "personal data", the Court of Appeal held that '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 the matter or an event that has no personal connotations…. 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.' Further guidance from the Information Commissioner provides the following, which will not be regarded as "personal data":

• mere reference to a person’s name where the name is not associated with
  any other personal information;
• incidental mention in the minutes of a business meeting of an individual’s
  attendance at that meeting in an official capacity; or
• where an individual’s name appears on a document or e-mail indicating only
  that it has been sent or copied to that particular individual, the content of that
  document or e-mail does not amount to personal data about the individual
  unless there is other information about the individual within it.

The House of Lords recently refused leave to appeal by Durant primarily on the basis that the case could not be won. Even if D was able show that the narrow definition provided by the Court of Appeal could not be upheld, it was doubtful, whether the catalogue of information held by the FSA was within the "relevant filing system". The definition of "data" under s 1 DPA 1998 was recently changed by the Freedom of Information Act 2000 to include data held by public authorities. Given the restrictive ruling, it appears that D is considering an appeal to the European Court of Human Rights under Article 6, concerning the right to a fair trial and Article 8, the right to privacy.

In any case, it was an opportunity lost to reconsider the restrictive interpretation of "personal data". What was surprising was that no referral was made by the Court of Appeal (known as an Art. 234 preliminary ruling) to the ECJ to define this. Such a definition should be in line with the Data Protection Directive 95/46/EC. One awaits to see what developments arise from this saga..