• Home
• Order now
• Prices
• How we help
• Press
• Law marking
• Contact us
• Resources
• Log in

Information Data Protection

Information Law and Policy

Assignment

Tensions have developed between the UK Government's use of information and access to the public via the Freedom of Information Act. Similarly, tensions have arisen between use of personal information and rights of individuals to control its use via the Data Protection Act. The rights of individuals seem to be treated differently between the one and the other legal domain. Is this a genuine contradiction or only an apparent one? How do you expect this duality to evolve in the current political climate, and is the concept of an information society being encouraged or discouraged in these domains?

Introduction

The right to privacy in the UK is contained in Article 8 of the European Convention on Human Rights as well as in the Data Protection Act 1998. In general Article 8 provides the individual with the right to control the use of private and personal data and with a reasonable expectation of privacy in his or her private life and personal papers. Be that as it may, Article 10 and Article 8(2) of the European Convention on Human Rights creates some tensions with this right to protection of private life in that it makes it possible for the Government to implement laws that limit or restrict the general right to privacy. One such law is the Freedom of Information Act 2000. The tension is a real one which the courts have struggled to reconcile. This paper will discuss the tension between the laws providing for the right to privacy and the laws which place restrictions on that right and the consequences of that duality in the context of the current political climate.

Article 8 and the Right to Privacy

Article 8 of the European Convention on Human rights mandates that the individual is entitled to respect for his or her “private and family life, his home and his correspondence.” This provision places a positive obligation on domestic governments not to implement laws that interfere the citizen's right to privacy and to make provisions for the protection of those rights. The European Court emphasized the State's obligation under Article 8 in respect of confidential medical information and data protection in general as follows:

“The protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting confidentiality of health data is a vital principle in the legal systems of all the contracting parties to the Convention. It is crucial not only to respect the privacy of the patient but also to preserve his or her confidence in the medical profession and in the health services in general.”

In complying with its positive obligations under Article 8 the UK Parliament implemented the Data Protection Act 1998 which essentially makes provisions for the manner in which individuals may control how their personal information can be used. The Data Protection Act 1998 which was implemented pursuant to he EC Directive 95/46/EC 24, October 1995. Article 1 of the EC Directive provides that:

“In accordance with this Directive, Member states shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.”

Despite this liberal expression of the right to privacy Article 8(2) provides for restraints on that right. Article 8(2) provides the State with a general right to intrude upon the individual's right to privacy when the State considers that it is in the general public's interest to do so.

Those exemptions can be identified in the Data Protection Act itself. For instance under Section 28 of the Act, personal data may be collected for the purpose of protecting the nation's national security. Moreover, Section 29 permits the collection of personal data for the protection and/or prevention of crime and for purposes associated with tax collection.

In today's political climate with the onset of fears associated with international terrorism the right to privacy under Article 8 of the European Convention on Human Rights is virtually a misnomer. The exemptions envisioned in both Article 8(2) and Sections 28 and 29 of the Data Protection Act 1998 are quite broad and could conceivably cover a broad range of scenarios. While these exemptions alone serve to contradict the general right to privacy and create tensions between the two conflicting provisions, Article 10 which gives rise to the Freedom of Information Act 2000 creates even more tension.

Article 10 of the European Convention on Human Rights

Article 10 of the European Convention on Human Rights provides the individual the right to freely express himself. Article 10(1) provides as follows:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...”

Like Article 8 of the Convention rights, Article 10(2) also contains constraints on freedom of expression which are also related to matters of national security. Be that as it may, Article 10 creates tension with the right to privacy contained in Article 8 and as such requires a delicate balancing of competing rights.

The House of Lords considered the tension between Articles 8 and 10 in Campbell v Mirror Group Newspaper Ltd.[2004] 2 AC 457. Lord Nicholls noted that the tension created by these two conflicting rights:

“...have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present.”

At the end of the day it is incumbent upon the courts to distinguish between those who endeavour to hide behind the cloak of privacy to prevent the publication of an unpleasant truth and those who wish to unjustly invade the privacy of others.

In Stone v South East Coast Strategic Health Authority (formerly the Kent & Medway Strategic Health Authority) et ales [2006] EWHC 1668 the Court of Appeal determined that in order to justify an exemption to the right to privacy under Article 8 it was necessary to consider:

“...the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy....”

However in assessing public interest in the context of the right to privacy as contained Article 8 of the European Convention on Human Rights, Article 10 was relevant since it makes provision for the free exchange of information. In other words the court was obligated by virtue of the tensions created by Articles 8 and 10 to balance the individual's right to privacy against the public's interest in the free exchange of information.

As Lord Nichols explained in the Campbell case this distinction creates an entirely different approach to the question of privacy and the freedom of expression conflict. Previously, all the court had to do was to satisfy itself:

“...whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.”

Now, in balancing the interest to be served by both Articles, the correct question to be asked is :

“...whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”

In keeping with the mandate of Article 10 of the European Convention on Human Rights and its general right to freedom of expression, the UK Parliament enacted the Freedom of Information Act 2000 which contains a general right to access to information held by public authorities. By virtue of Part II of the Freedom of Information Act 2000 there are general exemptions to the right to access to such information and again those exemptions are generally related to matters of national security. In any event the cumulative impact of both the right to privacy and the right to the free exchange of information has created a tension which requires a delicate balancing act, one which the courts generally resolve against the right to privacy.

Balancing the Right to Privacy against the Rights to Freedom of Information

Courts can generally take one of two approaches to resolving the tension created by the right to privacy the right to the free exchange of information. Those views are the deontological approach or the consequential approach. The deontological generally balances the right to privacy against matters of confidentiality. Or the courts can take the consequential approach where confidentiality is measured against public interest. The courts are in general reluctant to compromise freedom of expression if enforcing the right to privacy will infringe upon the benefits that general “flow from information sharing.”

In W v Edgell [1990] 1 ALL ER 835 the Court of Appeal was clearly predisposed against the application of the deontological approach. The Court of Appeal held that a breach of the protection against publication of confidential medical information was justified on the grounds that it was in the public interest for protection from “dangerous criminal acts.” The rationale in the W v Edgell is that by disclosing the offender's medical or mental disease action can be taken to identify and correct the conduct of others who might have a tendency to commit similar criminal acts. W v Edgell unequivocally illustrates that it is always possible for the courts to justify a case in favour of disclosure under the exemptions to the Data Protection Act 1998 and the broad interpretation of Article 8(2) of the European Convention on Human Rights.

Another approach to the disclosure of personal data which is usually applied in the disclosure of medical documents is the utilitarian approach. The utilitarian view takes the position that confidentiality is necessary:

“...for maintaining medical confidentiality…rests ultimately on a calculation of the effects of confidentiality or disclosure on the behaviour of current and potential future patients.”

This argument recognizes that the best interest of the future patient be weighed against the best interest of the future victim. This argument can be applied in a wide range of professional circumstances where confidentiality is required and protected.

Both the deontological and utilitarian approaches are relevant in applying the protection of the public interest with regard to Article 10 when balanced against the protection of the individual and his Article 8 right to privacy. The House of Lords in the Campbell case treated this balance in favour or confidentiality ruling that the notoriety of the claimant did not justify the Article 8(2) or the statutory exemptions that permit departure from the protection against publication of confidential data. It appears that the only ground upon which the court permitted the disclosure of Stone's medical records was the fact that his crimes were of immense public interest. However, the House of Lords ruling in the Campbell case rejected the publicity argument, maintaining that notoriety alone could not justify public disclosure of confidential medical records.

Broader Considerations and Tensions between Data Protection and Free Exchange of Information

In general the right to privacy entails the following:

“...the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”

This definition when taken together with international conventions and Article 8 of the European Convention on Human Rights gives the impression that the right to data protection is an absolute right. Privacy at first glance appears to be a concept recognized and indorsed by virtue of Article 12 of the UN Declaration on Human Rights as well as the International Covenant on Civil and Political Rights, Article 17.

However in today's current political climate with the technological advancements in which the internet thrives, freedom of information and information sharing takes on an entirely different dimension. This is particularly so in instances where a conflict and tensions arise between the two. The internet has increased the possibility of access to information and it can always be argued that persons surfing the internet and permitting personal data to be harvested online do not have a reasonable expectation of privacy.

The US Supreme Court in Bartnicki -v- Vopper 69 USLW 4323 at 4331 (2001) put the new age of information sharing in perspective as follows:

“Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.”

In the final analysis, the Data Protection Act 1998 is powerless to control the storing and harvesting of information via the internet. All it can do and all that it purports to do is to limit how that information can be used. And in doing so it balances the right of the individual to freedom of information.

As Kirby explains in the current political climate where modern technology makes it possible to gain access to all kinds of information, current privacy protection laws are inadequate. The laws do not specifically address current technological advanced “twenty first century man or woman.”

Conclusion

The balancing of competing and conflicting rights in the UK with respect to privacy protection and information sharing generally takes the position that some element of privacy must be sacrificed for the common good of commercial advancement which is a natural result of information sharing. The law at least as far as judicial interpretation of the laws permit also take the position that privacy must invariably compromised in safeguarding against breaches of national security. National security has taken on new meaning and importance following the September 11 terror attacks. Therefore in today's political climate where technological advancements have made it possible to detect and prevent crime, the right to privacy has become even more compromised.

While it has been argued that data protection laws in general are weak and leave too much room for departure by way of exceptions to the protective provisions, it is also true that the laws make it possible for internet users to control what information they want to be stored or communicated to others about them. The mere weakness of the data protection laws provides a deterrence incentive. Bygrave maintains that data protection and privacy laws are designed to limit a person's freedom of self-disclosure.

As noted by Bygrave:

“...the protection of privacy serves a large range of other values and interests.”

According to Bygrave these values and interests include “personal autonomy, integrity and dignity.”

An obvious conflict arises for the courts in attempting to strike a fair balance by implementing laws such as the Data Protection Act 1998 and the Freedom of Information Act 2000. As Bygrave notes, the conflict and tensions are inevitable as there are competing interests which are privacy and freedom of information. The only reasonable way to balance these competing interests is the implementation and developing of laws that seek to regulate and control the flow of information.

The tensions that are experienced in the balancing of the right to privacy via the Data Protection Act 1998 and the Freedom of Information Act 2000 are in practice real and ongoing. The tensions have become more prominent in today's political culture where national security issues as a result of the threat of international terrorism are more prevalent than previously. Since both legislative provisions and Articles 8 and 10 of the European Convention on Human Rights specifically provide for departure from both fundamental rights on the ground of national securities those tensions have become more prominent and will likely continue.

Bibliography

Bartnicki -v- Vopper 69 USLW 4323 at 4331 (2001)

Buckner, Fillmore and Marvin Firestone, (2000). “Where the Public Peril Begins: 25 Years. After TARASOFF” The Journal of Legal Medicine, 21: 2, pp. 187- 222

Bygrave, Lee, A. (2001) The Place Of Privacy In Data Protection Law. UNSWLJ 6

Campbell v Mirror Group Newspaper Ltd.[2004] 2 AC 457

Cate, F. H. and Michael E. Staten, (2001). “The Value of Information-Sharing” Copyright National Retail Federation .

Data Protection Act 1998

EC Directive 95/46/EC 24, October 1995

European Convention on Human Rights

Freedom of Information Act 2000

Havard J. (1985) “Medical confidence.” J Med Ethics 11:8–11

International Covenant on Civil and Political Rights

Jones, C. (2003) “The utilitarian argument for medical confidentiality: a pilot study of patients' views.” J. Med. Ethics ;29;348-352

Kirby, M D ‘Privacy in Cyberspace', (1998) 21 University of NSW Law Journal 323

O'Brien, J. Chantler, C. (2003) “Confidentiality and the duties of care” J Med Ethics 2003; 29: 36-40

Stone v South East Coast Strategic Health Authority (formerly the Kent & Medway Strategic Health Authority) et ales [2006] EWHC 1668

UN Declaration on Human Rights

W v Edgell [1990] 1 ALL ER 835

Westin, Alan F. (1970) Privacy and Freedom New York: Atheneum

Z v Finland (1998) 25 EHRR 371

Tweet

Do you need to translate this page?

To translate this page into another language, please select the correct language from the box below.

LOOKING FOR SPECIFIC HELP? We can help you in many law areas!

Did you know that we also provide a service that can help you in other law areas such as:

• GCSE Law Coursework
• A Level Law Coursework
• Law Essay Writing
• BVC/BPTC Writing
• LLM Writing
• LPC letter drafting
• Opinion Writing
• English Legal System
• And much more!

Want to see what our customers say about us? Click here to watch our video.

Want to become a writer for Law Teacher and earn up to £4,000 per month? Click here now!

Secure your law degree, order your human rights law essay right now!

Order Now. It takes less than 2 minutes.

1. * Name   
2. * Email   
3. * Phone   

1. * Your essay question 
   (please give as much detail as possible)  

Copyright © 2012 All Answers Ltd. All Answers Ltd is a company registered in England and Wales with Company Registration No: 4964706 VAT Registration No: 842417633 - Law Teacher - The law essay professionals