That view has been held by the Information Commissioner but was
previously untested in court.
In a case brought on behalf of their son, David Murray, JK
Rowling and her husband argued that the taking and publication of
photos of them on the street breached David's privacy. They have
won the right to a full trial in the Court of Appeal after a High
Court ruling that they did not have a strong enough case for a
trial was overturned. (See also OUT-LAW's main story on the ruling,
published earlier today).
A claim had also been made under the Data Protection Act,
though, which forbids the processing of someone's personal data
where it would be unfair or unlawful. The judge in the Court of
Appeal case said that if the actions of paparazzi agency Big
Pictures Ltd (BPL) were found by a future trial judge to have
breached David's legal right to privacy that could automatically
lead to a breach of the Data Protection Act.
The case hinged on whether David was entitled to protection of
his privacy under Article 8 of the European Convention on Human
Rights (ECHR) and whether BPL was entitled to take the photographs
and procure their publication under its rights to freedom of
expression, which are guaranteed in Article 10 of the ECHR.
The Court of Appeal had earlier found that David was likely to
have a case that his Article 8 privacy rights had been breached.
Sir Anthony Clarke said in his ruling that this could have
implications for the Data Protection Act (DPA) claim.
"If the trial judge were to hold that article 8 is engaged and
that the article 8/10 balance should be struck in David's favour,
it would follow that BPL's admitted processing of David's personal
data was unlawful," he wrote. "It would also follow that the
processing [of David's data] was unfair."
Rosemary Jay, head of the information law team at Pinsent
Masons, the law firm behind OUT-LAW.COM, said that the ruling sends
a clear message of support for the view of the UK's privacy
chief.
"This apparently innocuous statement is a view from the Court of
Appeal that confirms the view that a breach of other laws will
render data processing unlawful," she said. "This is a view that
has been taken by the Information Commissioner's Office (ICO) since
the 1990s but never previously considered by a court of law."
Some data protection commentators had argued that the
requirement in the DPA to process personal data lawfully means that
only the provisions of the Data Protection Act itself have to be
considered when deciding whether some processing is lawful or
unlawful. This restrictive view of unlawful processing has not been
upheld by the Court of Appeal.
Jay said that the ruling is important on this point, but that it
otherwise did not touch on the DPA issues in depth, such as what
the status was of letters from David's family to BPL before the
publication of the images asking for them not to be published.
"The comments were thin. For example there was no discussion
about whether the letters to the company objecting to the use of
the photographs amounted to objection to processing," she said.
