The result also forces the European Commission to decide whether
or not to start infraction proceedings against the UK Government. A
decision on such proceedings, which could eventually require the UK
Government to change the Data Protection Act of 1998, could be
taken in December.
Dr Chris Pounder of Pinsent Masons, the law firm behind
OUT-LAW.COM, said today: "The decision by the House of Lords is a
lost opportunity to provide legal clarity as the Court of Appeal's
decision has been interpreted in a very prescriptive manner."
He explained that many data controllers now believe that, to
qualify as "personal data," the data must have a focus on an
individual or be of biographical significance for the individual
concerned. The Court of Appeal said its notions were 'helpful' –
i.e. non-prescriptive. But, according to Dr Pounder, "its
prescriptive use has entered the data protection culture".
Dr Pounder, who is editor of Data Protection and Privacy
Practice, continued: "By contrast, the Government claims that
because the Court of Appeal judgment in Durant was not
prescriptive, so it follows that the UK Data Protection Act is OK
and infraction proceedings do not need to be commenced by the
European Commission."
He concluded: "A House of Lords review could have sorted out a
data protection mess. Now we wait to see whether the European
Commission commences infraction proceedings".
Mr Durant has also lodged a petition at the European Court of
Human Rights alleging violations of his rights under Articles 6
(Right to a fair trail) and 8 (Right to respect for private and
family life) of the Convention.
