Latest Data Protection developments for the month of October 2014

Congratulations are due to Mr Buttarelli and Mr Wiewiorowski – who have been chosen by the LIBE Committee as the new European Data Protection Supervisor and Deputy Supervisor.  The appointments are still to be confirmed by the Parliament and the Council of Ministers. Mr Buttarelli is the former Secretary General to the Italian Data Protection Authority and the current Deputy EDPS; Mr Wiewioroski is currently the Inspector General of the Polish data protection authority (GIODO)

The German Federal Court has made a reference to the CJEU, asking for clarification on whether dynamic IP addresses amount to personal data when they are held by a website publisher (rather than the IP). If the answer is yes, the Court has also asked if the German Telemedia Act correctly implements the Data Protection Directive.

In an interesting decision (Atkinson v Community Gateway Association), the UK Employment Appeal Tribunal has dismissed an employee's claim that his former employer breached his privacy rights in checking his emails: critically, he was the author of the employer's own email usage policy, so must have been aware that emails would be monitored.

Intrusive phone marketing: there has been substantial activity in this area – both proposals for legislative change and interesting examples of enforcement.

  • The Government has published a consultation on lowering the threshold at which ICO can take action in relation to nuisance calls. At present, ICO must demonstrate that substantial damage or distress has been caused or was likely before it can impose a monetary penalty: the government proposes to reduce this to calls causing annoyance, inconvenience or anxiety.
  • a monetary penalty of £70,000 has been imposed. Readers will recall that in June 2014, the Information Tribunal overturned a monetary penalty awarded by the Commissioner against the co-owner of Tetrus Telecommunications. This was on the basis that the calls made may be a nuisance, but could not be regarded as being of a kind likely to cause substantial distress.  The Commissioner's enforcement team have clearly leant from this and, in this monetary penalty notice, have included quotes from complainants showing distress suffered;
  • An enforcement notice has been served on an individual responsible for over 49,000 complaints about text marketing to industry body GSMA. Failure to comply with an enforcement notice is a criminal offence – so this may notice may a way for ICO to impose a criminal penalty in a text marketing case.

Judgment has recently been given in two new UK data protection cases (Mikhael Anatolyevich Trushin v National Crime Agency and The Master of the Rolls Lord Justice Beatson v Lord Justice Briggs): we will cover these decisions in November's bulletin.

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