Even with the best data protection training and awareness programme, mistakes can and do happen when organisations process personal data of a sensitive nature. Personal data can be lost or simply sent to the wrong person. Two recent Hight Court cases involve local authorities seeking injunctions in an attempt to limit the impact caused by inadvertent disclosures.
In Redbridge LBC v Jennings [2020] 5 WLUK 122 (to the best of our knowledge, only reported on Westlaw) the London Borough of Redbridge was granted an injunction to prevent X from publishing highly sensitive information about another family, that the Council had inadvertently sent to X. London Borough of Lambeth v Anthony Amaebi Harry [2020] EWHC 1458 (QB) was partly about a Breach of Confidence action by Lambeth Council against the Respondent who had also received third-party personal data. Let’s consider both cases and what we can learn from them.
The Disclosures
In the Redbridge case, a council employee wrote to X regarding her family. However the employee inadvertently included documents, containing highly sensitive information about another family (Family A), in the envelope. When X received the documents, she realised that she should not have seen them and so she returned them to the council. However, it later transpired that X had taken copies of the documents and that she planned to visit Family A to inform them about the council’s error. X also indicated that she would not destroy the copies that she had retained but she would give them to her solicitor. It is clear that X understood the confidential nature of the documents, and that she did not intend to share them with anybody else. However, it appears that she intended to retain the documents (in the hands of her solicitor) for the purpose of pursuing her own data protection claim against the council. X alleged that information about her family had been sent to a third-party who had “knocked on her door to return the documents”. At the time of writing it is uncertain whether X has brought such an action.
In the Lambeth case, Mr Harry made a subject access request (in November 2018) to the Council seeking information held about his child. It appears that another person (HJ) had made allegations to the Council about the care that Mr Harry and his wife were providing for their child. Lambeth Council provided the information to Mr Harry by electronic means. However it turned out that Mr Harry was able to manipulate the data (by removing the redactions that the Council had made) and was able to identify HJ, who had made the initial allegations. He commenced legal proceedings against HJ for defamation.
Lambeth Council sued Mr Harry for Breach of Confidence. It claimed that the information was provided to Mr Harry in circumstances where he knew it was confidential and that he had breached that confidentiality by “unredacting” the data, retaining it and using it as evidence to start court proceedings against HJ. The Council’s rationale for bringing the Breach of Confidence action was that informants have an expectation of confidentiality. The Council obtained an interim injunction in February 2019 to restrain Mr Harry from using the information he had acquired.
A Notifiable Data Breach
Both cases involve a personal data breach as defined by GDPR Article 4 (12):
“A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed”
Article 33 of GDPR requires a Data Controller to notify the Information Commissioner’s Office (ICO) about a personal data breach “without delay and where feasible, not later than 72 hours after becoming aware of it”. Notification is not required if the personal data breach is “unlikely to result in a risk to the rights and freedoms of natural persons”. Disclosing highly sensitive information about one family to another is likely to be a notifiable breach. A failure to adequately redact the name of a person who makes confidential allegations is also likely to have the same result.
The problem with inadvertent and accidental disclosures is the Data Controller may not necessarily be aware of them for some time. In the Redbridge Council case, X told the Council she had received the documents by mistake. According to the Article 29 Data Protection Working Party Guidelines on Personal Data Breach Notification under Regulation 2016/67, when a third party informs a Data Controller that they have accidentally received the personal data of one of its customers and provides evidence of the unauthorised disclosure, the Data Controller has become “aware” of the personal data breach. Where a Data Controller has been presented with clear evidence of a confidentiality breach then there can be no doubt that it has become “aware”. In the Redbridge case the Council took a decision to self-refer to the Information Commissioner’s Office; although interestingly the facts suggest that this happened prior to the GDPR coming into force.
In the Lambeth Case it is not entirely clear when or how the Council became aware that Mr Harry had been able to manipulate the data. However the facts, as recorded in the judgement, suggest that it became aware sometime in late 2018 when the ICO investigated complaints made by Mr Harry about the Council’s handling of his subject access request. In other words, it does not look like the Council was aware of the breach until the ICO investigated, although this is not certain from the limited factual information in the judgment.
When a Data Controller becomes aware that personal data has been unlawfully disclosed to a third party, it needs to contain the incident and assess the risk that could result from it. One way of doing this is to request the recipient to either return the information or to securely destroy it. However the Article 29 Guidelines make it clear that the Data Controller must “trust” the recipient to do this. In both cases it was quite clear that the recipients had no intention of safely destroying the personal data or returning it to the respective councils. In both cases the recipients intended to use the data as evidence in their own legal claims. In both cases the Councils sought an injunction to prevent the recipients from misusing private information and/or a Breach of Confidence.
Injunctions and Offences
Before granting an injunction, the High Court is required to consider whether an injunction would affect a person’s right to freedom of expression; for example his/her right to publish the information online or via the press. It can only grant an injunction if it is satisfied that publication should not be allowed.
In the Redbridge case the Court considered that the information was highly sensitive and that there would be a breach of confidentiality if the documents were either revealed to the press or published on-line. It therefore granted the injunction. In the Lambeth case the Court granted an interim injunction but the case concerning the Breach of Confidence has been listed for trial in July 2020 where Mr Harry will argue that he has a public interest defence.
In April 2020 the ICO decided to prosecute Mr Harry (in the Lambeth case) for the two offences of knowingly or recklessly re-identifying de-identified personal data, without the consent of the Data Controller, contrary to under s.171(1) of the Data Protection Act 2018 (“the DPA”) and the offence of knowingly or recklessly processing re-identified personal data, without the consent of the data controller, contrary to the S.171(5). There are no further details about this prosecution at this moment in time.
Lessons Learnt
The incidents in the cases referred to above were not major cyber-attacks or large-scale disclosures. In one case personal data was inadvertently put into an envelope. In another personal data was not properly redacted. But the consequences were potentially severe and could have had significant and adverse consequences for the data subjects concerned.
Both cases show that, although breach notification goes a long way towards addressing issues of awareness and accountability, Data Controllers may need to take further legal action, in the form of an injunction, to prevent collateral damage from an accidental disclosure. The ICO can use its enforcement powers under the DPA 2018 to prosecute people who unlawfully reidentify personal data and seek to process it, but this may come too late if the damage is already done.
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