Monday, November 26, 2007

Data Protection Developments

Given the latest press coverage over the benefits data fiasco, powers of the ICO have been increased to include spot checks. However, in a separate development, Privacy International is likely to take legal action on behalf of individuals affected by this against the government.

"More than 300 members of the public have contacted Privacy International since the revelation this week that Her Majesty’s Revenue & Customs unlawfully processed, and subsequently lost, personal details relating to around 25 million individuals. Most of these complainants have requested that PI undertakes, on their behalf, legal action against the government.

Accordingly, this organisation has over the past four days consulted a range of legal experts. The overall conclusion is that there is most likely a case that can be asserted. However, we must concede that not all lawyers are presently optimistic about a positive outcome. Nevertheless, given the unprecedented severity of this case we feel it is important to take some form of action on behalf of the many distressed and vulnerable families that have contacted us. It is even more important to assert the rights of the individual in the face of such circumstances.

We have therefore decided to pursue legal action against the government directly on behalf of the complainants and of course indirectly on behalf of all those people affected by the unlawful disclosure from HMRC. Our current intention is to pursue a claim for a general (not statute-based) breach of a duty of care on the basis of negligence.

We have been made aware that there are cases in which public authorities have been found to be very seriously at fault and where the courts seemed concerned not to impose liability where the claimant was one of a large and indeterminate class of people who might be affected by the careless conduct. The position would be different if the public authority actually created the danger itself or knew or ought to have known about the risk of harm resulting. It appears that courts are more willing to find “proximity” if a smaller group of persons is at risk than the public in general.

Three key issues remain to be resolved in the next few days.

1) We need to decide whether a specific "class" of individuals should be selected from amongst the complainants (for example, those who are in a particularly vulnerable situation). This will possibly help the issue of “proximity”.

2) We need to determine which individual or what department will be the target of the action (a named individual within the government or a section of HMRC), and,

3) We need to agree which law firm will handle the case. We are currently in discussions with potential companies.

Simon Davies, Privacy International’s Director, said:

"In seventeen years as a watchdog we have never received so many complaints over a single privacy issue. People are angry and distressed. They are deeply anxious over the potential threat to their children."

"Governments have hidden behind legal protection over negligence claims for many years. Now it is time to finally resolve the question of liability and duty of care so the citizen can enjoy a remedy against such blatant disregard for personal security."

"We believe there is a case to be heard and it is a case that can be won. However we realise we're going to face an uphill struggle winning that case, but we would be abandoning our responsibilities if we failed to take action."

For further information please contact Simon Davies on"

Source: Privacy International to pursue data breach legal action against UK Government

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