The cost of protecting your data

We have seen a marked increase in clients wanting to bring a claim for the misuse and/or mishandling of their personal data.

The starting point is that under the Data Protection Act 1997, you have a right to the data stored about you and the organisation storing such information has responsibilities in how that data is processed, used and stored.

Everybody is entitled to make a ‘Subject Access Request’ for a fee of about £10 (£50 for health and educational records and £2 for credit files).

This is supplemented by the Freedom of Information Act 2000 which provides a ‘right of access’ to information held by public authorities. In the last 10 years this Act has provided unprecedented exposure into the public domain of much guarded information, such as the parliamentary expenses scandal.

Information and governance is provided by the Information Commissioner’s Office, who can also dealt with complaints and grievances in the first instance.

If no satisfactory result is forthcoming then there is recourse to the civil and criminal courts for breach of data protection.

Recently this area of law came under judicial spot light in respect of the funding regime for such cases.

In Coventry and others v Lawrence and others (2015) it was decided that that the pre Legal Aid, Sentencing and Punishment Offenders Act 2012 (“LASPO”) regime (which allows for the recovery of Conditional Fee Agreements (“CFA”) success fees and After the Event premiums) was lawful and compatible with the European Convention on Human Rights.

Why does this matter though – even under the new LASPO regime, there are exceptions to the rule of non-recoverability of success fees and premiums from the losing opponents; publication and privacy cases (i.e. defamation, malicious falsehood, breach of confidence involving, publication to the general public, misuse of private information or harassment by a news publisher).

There are two competing cases in respect of costs under the old regime (i.e. pre LASPO). Campbell v MGN (No. 2) (2005) and MGN v UK 2011. In Campbell, it was held that the success fee was not incompatible with Article 10, i.e. it was a disproportionate interference with the freedom of expression and that it was disproportionate to allow a wealthy client to take advantage of a CFA. In MGN, the reverse was found; it was held there had been a violation of Article 10 and the requirement to pay success fees constituted an interference.

The Media Lawyers Association were given permission to make submissions in the Coventry case, but the Supreme court made no specific comment on the relevant issue. They made reference to the fact that MGN concerned Article 10 as opposed to Article 6 which was in question. Neither case was given preference. It therefore seems that given the lack of clarification and direction in Coventry, Campbell continues to apply. A challenge under the new costs regime would be difficult to win given the general tone of Coventry.

With the growth of electronic personal data, these problems can only become more common, as systems strain to cope with the growing breadth and volume of data. Funding of such cases will therefore be of paramount consideration, even for the rich and famous.