Saturday, September 7, 2013

JERSEY EVENING POST - THE IMPLICATIONS OF THE ACTION OF DATA PROTECTION COMMISSIONER EMMA MARTINS






DATA PROTECTION COMMISSIONER EMMA MARTINS

DEPUTY TRACY VALLOIS  - CHAIR OF THE PUBLIC ACCOUNTS COMMITTEE





"THE JERSEY EVENING POST"




"THEY SIMPLY FEAR CITIZENS MEDIA PART 2"





PART 1 CAN BE READ HERE.



http://ricosorda.blogspot.com/2013/09/the-jersey-evening-post-they-simply.html





LIBEL & DEFAMATION REPLACED BY DATA PROTECTION & THEIR COMMISSIONER EMMA MARTINS.


WHERE DO WE NOW STAND IN JERSEY REGARDING CITIZEN AND MAINSTREAM MEDIA ?


HAVE THE JERSEY EVENING POST JEP MISSED THE POINT - HAVE THE ENTIRE JERSEY MSM MISSED THE POINT?





Can we now say  by publishing someones name - no matter in what context - that we can now be dragged through a secret court case funded by the taxpayer?  This is the crucial matter that has been over looked in my opinion. This comes down to interpretation. Stuart Syvret has mentioned peoples name on his blog complete with allegations concerning them.  The Data Protection Law and not a Libel action has been used and this surely sets a very dangerous precedent not only for Citizen Media but for every Mainstream Media outlet in Jersey. Why have they remained silent on this? Have they been distracted by the fact that it is Stuart Syvret? 


Can Stuart Syvret - former CPO Graham Power - Lenny Harper  and any other member of the public now bring a Data Protection action against the JEP for any articles written by them (JEP)  that might be distressing  and damaging - how do we quantify distressing and damaging? Maybe they should be contacting Data Protection Commissioner, Emma Martins.   This is very serious. Think about it. 


After all the vitriol that the bloggers have had to endure and the hands of the JEP - calling into question our integrity, motives and accusing us of publishing "Allegations without Substance" can we now bring a class action against the JEP - funded by the taxpayer - and ask them to remove all mention of blogs/bloggers -Lenny Harper and anybody else who have attempted to bring child abusers and their protectors to account.


In today's JEP the Data Protection Commissioner, Emma Martins has come out with a statement that could set in motion a collision course with the UK Parliament. Let me quote her exact words - if accurately interpreted by the JEP. 


The JEP asked Emma Martins - " Whether further action would be taken against Mr Syvret or others who have named identified the four"


Mrs Martins replied " Every complaint we receive is dealt with in accordance with our statutory powers. The Royal Court judgement is clear, and the office of data protection commissioner notes that all of the applicants have been successful in winning the relief that they were seeking. This has been a difficult, complex and long-running case which has taken a real personal toll on the applicants. We are all accountable for what we write and say in the online environment  and that accountability applies equally to those who claim journalistic status - they also have to face the legal consequence arising from damage that they do and the lasting harm that they can cause during their actions. This judgement shows clearly that the laws that protect us in our everyday life also extend online. There will be no further comment from this office."End


Deputy Trevor and Shona Pitman could have saved themselves a fortune by going to the data protection office instead of taking a libel action.  You can now by-pass the press complaints commission and go straight to Emma martins - what is good for the goose is surely good for the gander. 


Now, I'm opening these concerns and questions to the public. Have I got my interpretation of this wrong? I'm simply asking the question. By using Data Protection and not Libel has a whole new precedent been set?


I have copied  the names of the 4 individuals involved and has a multitude of other  blog sites from the 'UK Parliament Hansard'. Will we now see Emma Martins taking them on in court to have them removed? If I have to take them down, then surely the UK Parliament Hansard must follow suit.


The JEP never contacted Stuart Syvret for a reply until after their piece had been written and published. How ironic that the reply they did publish in today's paper comes straight from his blog. He asked for  a set of questions but instead the JEP went for a quick cut and paste job. This is becoming, as with all things Judicial and Legislative in Jersey, a complete joke.


Again some very serious questions must be asked of the Data Protection Office, via the Chief Minister, Ian Gorst, who has political oversight of said office, about just  how much money has been spent, out of what budget the money has come from and surely the tax paying public of Jersey has a right to know. 

Could/ Should the Public Accounts Committee (PAC) under the leadership of Deputy Vallois and the watchful eye of Senator Ferguson start following the money and find out exactly how much this has cost the Jersey Taxpayer.

Make no mistake we are dealing with a systemic  and shambolic level of governance that must come to an end one way or the other. This is not sustainable. We need serious checks and balances across all functions of Judiciary and Governance.


Rico Sorda

Part Time Investigative Journalist

Citizen Media and Proud. 

58 comments:

RBougeard said...

Good luck in getting this amended Emma lol.. http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120918/debtext/120918-0003.htm

Can Hansard (in the UK) be amended after publication just to suit certain agendas?

voiceforchildren said...

Rico.

Excellent questions posed and excellent points made that not a single Jersey "journalist" have even thought of. It's all a stinking mess which, yet again, cannot stand up to any scrutiny.

Going by what Ms Martin's and Chief Minister Gorst have to say, including the court judgement, one must assume that Deputy Trevor Pitman will have a strong case against the disgraced JEP and Chief Police Officer MIKE BOWRON?

Will the Data Protection Office now be attempting to silence the UK Parliament for publishing the four individuals names?

It's a complete nonsense but sold to the general public, by a state controlled media, as if it's something that makes sense. You really couldn't make this stuff up

Anonymous said...

Surely the JEP didn't use "Weather" instead of "Whether" - or have standards slipped there even more?

Anonymous said...

Should Deputy Trevor Pitman compel Emma Martins to force the JEP to remove comments which have caused Trevor and Shona stress and distress? Why, of course. That's a much, much lower threshold than libel requires. The Pitmans should then have the Data Protection costs and any of their own, reimbursed by the JEP - even if those special funds came from the Criminal Confiscation Fund. All of you bloggers have a case, in my interpretation.

Elle

rico sorda said...

That could have been one of my typo's as I was reproducing it. That is probably the least of their worries.

rs

Anonymous said...

''the office of data protection commissioner notes that all of the applicants have been successful in winning the relief that they were seeking.''

Have they been successful? what were they seeking? The super injunction and named people are on uk Hansard was it financial compensation how much did the action cost the public to fund

Anonymous said...

The whole Island of Jersey should bring a class action against the JEP for causing distress and harm to the populace and most of all the victims of child abuse. Will Emma Martins be up for that?

Anonymous said...

Bloggers should test the data protection commissioner. Do it.


You have evidence to show Data protection your challenge to the Jersey Evening Post.

Anonymous said...

It's time for all victims of the JEP to utilise this new right to tax-payer funded private prosecutions. Doesn't even matter if what the JEP says is true, evidence and factual merit are irrelevant. Go for it, then take it all the way to Strasbourg and see how it holds up.

Anonymous said...

Rico, from your previous post entitled: THE JERSEY EVENING POST - THEY SIMPLY FEAR CITIZEN MEDIA

I quote:
"The Solicitor General:

I think it is helpful to look at what was the purpose of the Data Protection Law introduced by States Members. The purpose of the law, as I see it, is that it was designed to protect individuals from the misuse of their private information. In particular, where that misuse results in substantial stress or harm, the law sees fit to give that individual a remedy. So I do not see it necessarily at all being whether or not something could also fall into a defamation case. In my view, the better view is the issue whether or not the Data Commissioner is discharging his or her duties properly and promoting the function of the law, which is to require data controllers to manage data in a responsible manner."

I may be missing something here, but what "private information" has been disclosed by Stuart et al? From what has been disclosed, the information appears to be either in the public domain or released by entitled Whistleblowers.
Has the term "private information" even been defined in Jersey?

The Beano is not the Rag

rico sorda said...

What I want everyone to do including the Jersey MSM is to have a serious look at what has just taken place in the Jersey Courts. Remove the name Syvret and concentrate on the actual implications of the case. This has been an attack on free speech. This attack was aimed at hitting the bloggers - it affects everyone.

Is the office of Data Protection, under Emma Martins, compromised and out of control. Is Emma Martins nothing more that the sock puppet to the ruling elite because surely her better judgement in all this was to state it was a simple libel case.

rs

Anonymous said...

Rico, It probably wasn't just her own better judgement. We know she frequently confided in Bergerac about this case.

Anonymous said...

I think the Jersey Evening Post journalist/hack is hilarious.

They've dug a hole and are finally burying themselves. Do they truly believe the public are so dumb.

rico sorda said...

Beano, that is a very good question. I think in the end they wanted a quick end to this as they could see the trouble that it would bring.

As I see it nothing has changed apart from confusion.

rs

Anonymous said...

If you have an Apple computer, install "disconnect" onto your safari browser. You'll be interested to learn that "ozouf.je" will be informed if you visit this site.

Big brother watching?

Anonymous said...

If you look in the telephone directory, how many people have the same name.

Data protection is not about names. Unless of course, you have the right name.

rico sorda said...

Care to elaborate a little more on the Ozouf.je/

Anonymous said...

Wish i could elaborate Rico, all i know is that "disconnect" will inform you of all sites that are monitoring any given webpage at any given time that you are viewing and it will block that site from tracking you and "ozouf.je" is one of them monitoring yours. That is, as far as i'm aware his official website. I have been using it for some time now and all i can say is that the number of sites monitoring you and fellow bloggers has gone up dramatically over the past month. This could be good or bad. Try it out for your self.

Anonymous said...

Worryingly the DP issue makes no reference to the published comments being accurate. That is the great difference with libel laws. You cannot libel someoneone with demonstrable fact.

Anonymous said...

This is an application by the representors named above for an Order pursuant to Article 10 of the Data Protection (Jersey) Law 2005 (“the DPL”) requiring the respondent (Mr Syvret) to cease processing their personal data on his personal blog site, (“the Blog”), and not to begin processing such data hereafter.

If the four dispute data published on Mr Syvrets blog then it can not be true so where is the issue, it cant belong to them when they deny its substance.

Anonymous said...

Commenter at 6:27 points out an obviously unintended result of the case. Anyone reading the judgement would be left contemplating why the facts are not at issue, why the truth is irrelevant. No one is in a position to come out and state that the blog lied. No one, from court officials to msm will go that far. On top of that, Stuart's already high blog readership shows a sudden, dramatic increase in response to the judgement and the related blogs. Remind us again, what Jersey got for that 8 million?

Elle

rico sorda said...

THE COMMISSIONER:

Hearing in private

At the outset of the hearing I directed that the hearing should be in private because it seemed to us that this was necessary in order to secure the proper administration of justice: see Jersey Evening Post Limited-v-Al Thani and Ors [2002] JLR 542 at paras [14]-[15].

The nature of the Application

1. This is an application by the representors named above for an Order pursuant to Article 10 of the Data Protection (Jersey) Law 2005 (“the DPL”) requiring the respondent (Mr Syvret) to cease processing their personal data on his personal blog site, (“the Blog”), and not to begin processing such data hereafter.

2. The background to the present application is as follows: Mr Syvret served as a Deputy in the States of Jersey from 1990 to 1993 and as a Senator from 1993 until 2010. During that time he was President of the Health and Social Services Committee from 1999 until 2005 and thereafter was Minister for Health and Social Services from 2005 until September 2007. He forfeited his senatorial seat in April 2010 after he spent 6 months out of Jersey.

3. Mr Syvret set up the Blog in January 2008. The four representors are amongst those who have been repeatedly identified by name on the Blog as having, amongst other things, engaged in criminal behaviour. In order to prevent further identification of the representors, I have decided that they should be referred to in this judgment as AB, CD, EF and GH.

4. The case for the representors is that Mr Syvret is a “data controller” within the meaning of the DPL and that he has processed their personal data by uploading, publishing and storing false and offensive posts on the Blog. The representors contend that the allegations made about them on the Blog are untrue and unjustified.

5. The representors further contend that Mr Syvret is responsible for and moderates comments left on the Blog by third parties. Their case is that Mr Syvret would be able to remove such comments from the Blog but has refused to do so.

6. “Notices to Stop Processing” have been served on Mr Syvret on behalf of each of the representors. They assert that Mr Syvret has refused to stop processing their personal data which remain stored and published on the Blog.

7. On 17th November, 2010, Mr Syvret was convicted in the Magistrate’s Court of two offences, one of disclosing personal data without consent and one of processing personal data without being registered as a data controller. Mr Syvret’s appeal against his said conviction in the Magistrate’s Court was dismissed by the Royal Court on 30th August, 2011.

8. On 13th August, 2012, the representors made an application to the Court, without notice to Mr Syvret, seeking an interim injunction restraining him from posting on the Blog or any other blog any material relating to the representors. The Royal Court granted the injunction sought. Subsequently on 17th August, 2012, the Royal Court issued a clarification which stated that the injunction granted on 13th August, 2012, did not apply to material already stored on the Blog but only restrained him from posting additional material on the Blog in the future.

9. By the present application all four representors seek a final injunction restraining Mr Syvret from processing their personal data within the meaning of the DPL.

rico sorda said...

Proceedings in private

10. Before turning to the merits of the present application, we should explain why, as was made clear at the beginning of this judgment, the hearing of this application was held in private. This is a case where we are satisfied that, if any publicity were to be given to the facts of the case (including the nature of the relief sought, the evidence given and the terms of the present judgment), the object of the application would be defeated. For the same reasons that earlier proceedings in the case have been held in private, we are satisfied that the present proceedings, including the evidence, the written argument and the terms of this judgment, should also be private. This means that no reporting of any part of the proceedings is permissible.

Delay

11. Before turning to the substantive issues which arise in the present application, we must consider whether the delay which has occurred in the present case is such as to deprive the representors of any entitlement which they might otherwise have had to injunctive relief.

12. As Advocate Robertson, who appeared for the representors on the hearing of the present application, rightly accepted in the course of his admirably clear submissions, there was some delay both before the first Notice was issued on 3rd August, 2010, as well as thereafter. His contention is that there are several reasons which explain the delay that occurred both before and after the Royal Court granted an interim injunction on 13th August, 2010.

13. The charges against Mr Syvret of offences under the DPL were laid as long ago as 3rd June and 8th July, 2009. The date initially set for the trial of those charges was 27th September, 2010. As we understand it, the principal reason why the trial did not take place earlier was that Mr Syvret left Jersey for about 6 month after being charged and did not return until April 2010.

14. In the event the criminal charges against Mr Syvret were not concluded until 17th November, 2010, when, as we have already said, he was convicted of both offences. Mr Syvret appealed against those convictions.

15. We were told by Advocate Robertson that the representors took the view that civil proceedings should not be commenced against Mr Syvret until after the outcome of the criminal proceedings in the Magistrate’s Court was known. We do not feel that this was an unreasonable position for the representors to have adopted in all the circumstances of the present case. Once Mr Syvret decided to appeal, a further postponement was inevitable. The appeal was dismissed on 30th August, 2011.

16. Advocate Robertson invited us to take into account various considerations, namely:-

(i) The fact that Mr Syvret decided to stand for election as Senator in October 2011;

(ii) The fact that the fourth representor (who had sought the assistance of the Data Protection Controller in April 2011) needed to serve on Mr Syvret a formal “Notice to Stop Processing” in order to be entitled to the relief sought in these proceedings, and

(iii) That Mr Syvret should be afforded a further opportunity to comply with the earlier requests made on behalf of the representors before proceedings were commenced.

17. We have carefully considered whether the delay which has taken place between the final determination of the criminal proceedings in August 2011 and the issue of the present proceedings in August 2012 is in all the circumstances unreasonable. We have concluded, not without some hesitation, that the delay which occurred over this period is not such as to deprive the representors of the relief sought. We accept that this period of delay was in all the circumstances excusable. In August 20112 directions were given for the substantive hearing of the present application.

rico sorda said...

Proceedings in private

10. Before turning to the merits of the present application, we should explain why, as was made clear at the beginning of this judgment, the hearing of this application was held in private. This is a case where we are satisfied that, if any publicity were to be given to the facts of the case (including the nature of the relief sought, the evidence given and the terms of the present judgment), the object of the application would be defeated. For the same reasons that earlier proceedings in the case have been held in private, we are satisfied that the present proceedings, including the evidence, the written argument and the terms of this judgment, should also be private. This means that no reporting of any part of the proceedings is permissible.

Delay

11. Before turning to the substantive issues which arise in the present application, we must consider whether the delay which has occurred in the present case is such as to deprive the representors of any entitlement which they might otherwise have had to injunctive relief.

12. As Advocate Robertson, who appeared for the representors on the hearing of the present application, rightly accepted in the course of his admirably clear submissions, there was some delay both before the first Notice was issued on 3rd August, 2010, as well as thereafter. His contention is that there are several reasons which explain the delay that occurred both before and after the Royal Court granted an interim injunction on 13th August, 2010.

13. The charges against Mr Syvret of offences under the DPL were laid as long ago as 3rd June and 8th July, 2009. The date initially set for the trial of those charges was 27th September, 2010. As we understand it, the principal reason why the trial did not take place earlier was that Mr Syvret left Jersey for about 6 month after being charged and did not return until April 2010.

14. In the event the criminal charges against Mr Syvret were not concluded until 17th November, 2010, when, as we have already said, he was convicted of both offences. Mr Syvret appealed against those convictions.

15. We were told by Advocate Robertson that the representors took the view that civil proceedings should not be commenced against Mr Syvret until after the outcome of the criminal proceedings in the Magistrate’s Court was known. We do not feel that this was an unreasonable position for the representors to have adopted in all the circumstances of the present case. Once Mr Syvret decided to appeal, a further postponement was inevitable. The appeal was dismissed on 30th August, 2011.

16. Advocate Robertson invited us to take into account various considerations, namely:-

(i) The fact that Mr Syvret decided to stand for election as Senator in October 2011;

(ii) The fact that the fourth representor (who had sought the assistance of the Data Protection Controller in April 2011) needed to serve on Mr Syvret a formal “Notice to Stop Processing” in order to be entitled to the relief sought in these proceedings, and

(iii) That Mr Syvret should be afforded a further opportunity to comply with the earlier requests made on behalf of the representors before proceedings were commenced.

17. We have carefully considered whether the delay which has taken place between the final determination of the criminal proceedings in August 2011 and the issue of the present proceedings in August 2012 is in all the circumstances unreasonable. We have concluded, not without some hesitation, that the delay which occurred over this period is not such as to deprive the representors of the relief sought. We accept that this period of delay was in all the circumstances excusable. In August 20112 directions were given for the substantive hearing of the present application.

rico sorda said...

The relevant law

18. We turn next to the applicable law. The starting point is to consider in what circumstances individuals such as the four representors are entitled to prevent the processing of their personal data, which is the principal relief sought in the proceedings.

19. Article 10 of the DPL provides as follows:-

“Right to stop processing that causes distress or damage

(1) An individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which the individual is the data subject, on the ground that, for reasons specified in the notice –

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to the individual or to another individual; and

(b) that damage or distress is or would be unwarranted.”

(We need not set the terms of paragraph 10(2) because it appears to us that none of the conditions in paragraphs 1-4 of Schedule 2 is applicable)

“(3) The data controller shall within 21 days of receiving notice under paragraph (1) give the individuals who gave it a written notice –

(a) stating that the data controller has complied or intends to comply with the individuals notice; or

(b) stating the data controller’s reasons for regarding the individual’s notice as to any extent unjustified and the extent (if any) to which the data controller has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given notice under paragraph (1) –

(a) that the notice is justified to any extent; and

(b) that the data controller in question has failed to comply with the notice to that extent, the court may order the data controller to take such steps as it thinks fit for complying with the notice to that extent.

(5) The failure by a data subject to exercise the right conferred by paragraph (1) does not affect any other right conferred on the data subject by this Part.”

20. Mr Syvret having chosen not to take part in the present proceedings, Advocate Robertson drew our attention to the arguments which Mr Syvret might have advanced if he had been present. He accepted that, where the circumstances in which the data is processed are clearly in the public interest and must necessarily be carried out without the consent of the individual concerned, then the processing of the information will be lawful. He drew our attention to the Data Protection (Sensitive Personal Date)(Jersey) Regulations 2005, which contain a list of additional circumstances in which the processing of sensitive personal data is permitted. He also referred us to Article 32 of the DPL which provides a number of additional exemptions.

rico sorda said...

21. However, it is in our judgment clear that none of these provisions are applicable in the circumstances of the present case. There is no suggestion that any of the claimants consented to the processing of their personal data. Nor is the data in the public domain. We do not accept that the data with which this case is concerned could be exempted on the ground it was reasonable in the public interest for it to be published; see the decision of the English Court of Appeal in Campbell-v-Mirror Group Newspapers [2003] QB 633 at paragraph 120-1.

22. Mr Syvret has sought to rely on Article 10 of the European Convention on Human Rights. It is however, established law that the right to freedom of expression contained in Article 10 has to be balanced against the right to respect for private and family life contained in Article 8 of the Convention. Whilst we accept that Article 8 does not encompass a right to privacy as such, there is ample authority that the Court is required in cases such as the present one to have regard to the rights of individuals such as the representors in the present case to respect for their private and family life. We are in no doubt that the right of Mr Syvret to freedom of expression is outweighed by the right of the representors to protection under Article 8.

rico sorda said...

Applicability of the DPL to blog sites

23. Although Mr Syvret has chosen not to appear before us we have nevertheless considered whether the provisions of section 10 of the DPL apply to blog sites. There is no Jersey authority, so far as we are aware, on this point. We were therefore invited by Advocate Robertson to consider the position under English law.

24. We accept that section 1 of the English Data Protection Act 1998 defines “data” in broad terms.

25. We were referred by Advocate Robertson to Carter-Ruck on Libel and Privacy (6th edition), paragraph 22.14 of which reads as follows:-

“Given the now near-ubiquitous retention and processing of information in electronic form on digital devices by those working in the media – and many other – contexts, the scope of the first two of these concepts is extremely broad. They would extent, for example, to information captured and/or held in audio, visual and textual file formats on computers, video cameras, voice recorders, disks and so on.”

26. It appears to us that Jersey law should likewise give a wide meaning to the term “data”. Since posts on the Blog are disseminated to others by computers and/or the internet, we consider that posts on blogsites fall within the scope of the DPL.

Interaction between the DPL and other causes of action such as defamation and harassment.

27. Given that, so far as we are aware, there is no Jersey authority as to the interaction between data protection law and other parallel concepts such as defamation, we think it right that we should consider the English authorities which bear on the point. We feel that we are justified in doing so since the English Data Protection Act is in very similar terms to the Jersey DPL.

28. We were referred by Advocate Robertson to two English authorities, namely Campbell-v-Mirror Group Newspapers [2004] 2 WLR 1232 and The Law Society-v-Kordowski [2011] EWHC 3185. Whilst we accept that it is the practice in England for claimants to advance claims for defamation and harassment with a claim for data protection in the same proceedings, we are satisfied that there is no reason why a claim for data protection should not stand alone as a separate and distinct cause of action.

29. In Kordowski, Tugendhat J observed at paragraph 172:-

“I note with interest that an injunction preventing the processing of personal data in relation to a website was granted in representative proceedings in SHG-v-Baines [2006] EWHC 2359… The terms of the injunction were to restrain publication of defamatory words and harassment as well as processing personal data.”

Tugendhat J granted a perpetual injunction in Kordowski restraining the defendant from processing personal data as well as from publishing defamatory words and harassment.

rico sorda said...

30. Whilst we are not of course obliged to follow English authority, which is no more than persuasive as far as the Courts of Jersey are concerned, we think it right that the Courts of Jersey should follow English law. Accordingly we take the view that the court may in an appropriate case grant relief under Article 10 of the DPL independently of any other cause of action.

The first question: do the posts on the Blog constitute “sensitive personal data” as defined in the DPL?

31. We now turn to the questions which arise in relation to the concepts which are to be found in the DPL, starting with the definition of “sensitive personal data”.

32. Article 1 of the DPL defines “data” as:-

“Information which is being processed by means of equipment operating automatically in response to instructions given for that purpose, is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or forms part of an accessible record.”

Given that posts on the Blog are both stored and disseminated via computers and/or the internet, we consider that they fall within the definition of “data” in the DPL.

33. The next question is whether the data with which the case is concerned qualifies as “personal” data. Article 1 of the DPL defines such data as being:-

“data that relates to a living individual who can be identified [either] from those data, or [else] from those data and other information that is in the possession of, or is likely to come into the possession of, the relevant data controller, and includes any expression of opinion about an individual who can be so identified and any indication of the intentions of the data controller or any other person in respect of an individual who can be so identified.”

34. The material criteria are:-

(i) The identifiability of the individual concerned and

(ii) The possession or likely possession of the data.

It is to be noted that data includes “any expression of opinion about an individual”. We have noted the hostile and abusive opinions expressed by Mr Syvret on the Blog.

35. In Durant-v-Financial Services Authority [2003] EWCA Civ 1746 the English Court of Appeal indicated two ways in which it might be determined whether data qualifies as personal data about an individual: firstly, by considering whether the information is “biographical to a significant degree” and, secondly, by considering whether the person concerned is “the focus of the information”. We are satisfied on the basis of Durant that the data with which this case is concerned qualifies as “personal” data for the purposes of the DPL.

36. Finally we consider next whether the personal data concerning the representors qualify as “sensitive” personal data? The term is defined in Article 2 of the DPL as comprising inter alia information about an individual’s physical or mental condition, sexual life, commission or alleged commission of criminal offences and any related legal proceedings.

37. The reason why it is material to consider whether the information with which the case is concerned qualifies as “sensitive” is that the DPL imposes an additional requirement that sensitive personal data should be processed “fairly and lawfully”.

rico sorda said...

38. It appears to us to be clear that many of the posts on the Blog complained of do come within the statutory definition of “sensitive personal data” in Article 2 of the DPL. In particular we are satisfied that some posts contain data about the commission or alleged commission of criminal offences and proceedings regarding such offences.

39. We note that in his response to the notices to stop processing issued on behalf of the first, second and third representors, Mr Syvret contended that the information published on the Blog consists of “generally known, public information, hearsay, opinions, and other such, much of which was conveyed to me by my former constituents. It thus constitutes material that falls squarely within the bounds of free speech as guaranteed by the ECHR.”

40. As it appears to us, Mr Syvret is implicitly accepting in the description he gives of the material contained on the Blog that it does contain “personal data” which is “sensitive” within the meaning of Article 2 of the DPL.

Is Mr Syvret the “data controller” of material published on the Blog?

41. We are satisfied that Mr Syvret comes with the definition of “Data Controller” in Article 1 of the DPL which defines a data controller as meaning:-

“a person who (either alone or jointly or in common with other persons) determines the purpose for which and the manner in which any personal data are, or are to be, processed”.

We accept that Mt Syvret falls fair and square within this definition; on his own case it was he who decided what personal data should be processed and his purpose and manner of doing so.

42. An allied question is whether Mr Syvret “processed” data on the Blog. We note that “processing” is defined in Article 1 of the Law as follows:-

“”Processing”, in relation to information or data, means obtaining, re cording or holding the information or data, or carrying out any operation or set of operations on the information or data, including –

(a) organising, adapting, or altering the information or data;

(b) retrieving, consulting or using the information or data;

(c) disclosing the information or data by transmission, dissemination or otherwise making it available; or

(d) aligning, combining, blocking, erasing or destroying the information or data.”

43. We are satisfied on the evidence that Mr Syvret carried out most, if not all, of the operations on the information or data published on the Blog which are set out in (a) to (d) inclusive. In consequence we find that he is the “data controller” of the material on the Blog.

Substantial damage or distress

44. The principal relief sought against Mr Syvret by the representors is an injunction. We consider that each of the representors is plainly entitled to the injunctive relief sought.

45. The representors also claim that they have suffered substantial damage and substantial distress. Given the nature of the allegations made by Mr Syvret against each of the representors, we readily accept that each of them will have been distressed and angered by the postings on the Blog.

46. The statutory requirement sit at the representors must establish substantial distress. There is little help to be derived from the English authorities as to the meaning in the present context of the word “substantial”. We consider that, when used to qualify distress, substantial bears the meaning that the distress caused is more than merely trivial.

47. As to the requirement that the damage suffered must be substantial we take the view that the word “substantial”, when applied to the level of damage, bears the same meaning as it does when applied to distress, namely that to qualify as substantial the damage suffered must be more than merely trivial. We reject the notion that damage needs to involve financial loss or physical harm in order to qualify as substantial.

rico sorda said...

8. Each of the four representors describes both in that Notice to Stop Processing and in that witness statements the nature of the damage and distress they claim to have suffered.

49. One of the representors explains in the Stop Notice the nature of the substantial distress and substantial damage he claims to have suffered. He asserts that the distress arises mainly from the statements accusing him of most serious criminal wrongdoing. As to damage, his case is that the unwarranted imputations made by Mr Syvret about him have caused substantial damage to his business interests as well as damage to his health and reputation. The other representors advance comparable claims as to the damage suffered.

50. We are satisfied that the distress and damage suffered by each of the four representors are “substantial” in the sense which we have indicated.

51. Accordingly for the reasons set out above we are satisfied that each of the applicants has established his entitlement to the relief sought.

rico sorda said...

And there you have the complete judgement. Probably a bit long for a main posting but a very important judgement. Does it stack up? I have already been pointe to a number of flaws in it that will remain private for now.

Again, we can ask, should this have been a straight libel case? Was it data protection behind closed doors because the last thing they wanted was evidence heard in an open court on such an alarming issue as free speech.

rs

TROJAN HORSE said...

My god thank heaven we have people like you to bring all this out in the open for the general public. I would say that the only way to stop all of this to to get those states members out in the next elections.

rico sorda said...

How did the 4 come together?

Who formulated this?

Who decided that it would be Data Protection and not libel.

Who paid their legal fees - and from what budget


And who won apart from the lawyers?

voiceforchildren said...

Rico.

Those stalwarts of free press, and freedom of speech (not) BBC Jersey, and ITV Jersey were also well aware of this secret court case. Why did neither of them challenge the secrecy of it?

Anonymous said...

"The representors contend that the allegations made about them on the Blog are untrue and unjustified."

So I guess Stuart had to prove they werec true y/n?

As it appears that this case was not a super-injunction but just a private (in-camera) case, why was Stuart not allowed to confirm there was such a case when Voiceforchildren interviewed him?

Data Protection Law, as far as I recall, was brought about, to ensure that personal data held in some for of database was secure from being read by those with no authority.

This case appears to be rather bizarre, and considering the cost, rather perverse.

I do not understand why the four, could not be named. Surely, that says they were not concerned with ensuring that they cleared their names, as surely the only stress and distress must have come about, knowing everybody read these articles (which they claimed were untrue) and may have believed them. However, nothing in this case seeked to reverse the public's belief about those named.

I must say, if I were guilty of murdering someone, I'd feel stressed and distressed if everybody was told, as equally as I would if I was guilty.

On the outcome of this case, it appears that whether the fact was true or not, stressed and distressed is the judge, how bizarre.

---
26. It appears to us that Jersey law should likewise give a wide meaning to the term “data”. Since posts on the Blog are disseminated to others by computers and/or the internet, we consider that posts on blogsites fall within the scope of the DPL.
---

So wide in fact, that they have allowed someone who phoned Stuart and threatened him, to seek compensation from Stuart - So wrong.

Anonymous said...

I intend starting a blog, so I checked to see whether I need to register with data protection (I live in the UK).

It appears I do not, as I will not require anyone to register with me. Therefore as I will not be holding any 'personal information' ie: name, date of birth, photo, email address, home address or telephone number, I see no reason for me to register.

Those posting, may live anywhere in the world, they may express personal opinions on certain people, as they could easily do so in their local pub, but naming a person and expressing personal opinions on someone, does not constitute 'personal information', for which data protection is all about.

Rico, if I recall correctly, I believe you had to register with the Jersey Data Protection, why?

Anonymous said...

Rico,

Your comment at 10:27 is the real litmus test. Did these four individuals all wake up one morning and suddenly decide to head to the Data Protection Commissioner? I think not, this whole scene has been thought through by someone and then put into motion. But as is always the case with people with 'one eye closed' you can never quite see the whole picture, what has now happened is??? well pretty much a free for all. So when anyone who has been 'named' by the JEP (prior to any conviction) they can henceforth trot on down to DPC and claim they have been put to undue stress etc.....as Stuart Syvret says "You could not make this up". One last point, why do so many contributors to blogs post as 'anonymous' and YES that was a rhetorical question.

Anonymous said...

This is clearly misappropriation of public funds, and requires a full inquiry, and heads should roll.

James H. Metaphor said...

I find it alarming the wide scope this law covers, based on the precedent created by this ruling. Essentially they have declared that any media (newspaper, blog, etc) that states "sensitive personal information" (including their name, an individual’s physical or mental condition, sexual life, commission or alleged commission of criminal offences and any related legal proceedings) can have an action brought against them, paid for by Jersey taxpayers, by the person mentioned. If you have picked up a newspaper or magazine in the past few years, you'll probably be aware that this makes up the bulk of so-called news. Based on this ruling, newspapers will be largely unable to report any news whatsoever.
I would be interested to know how such a ruling affects imported newspapers and websites hosted overseas. Do we have a right to bring an action against them? If so this could mean the end of media as we know it (but it's unlikely). Who knew Jersey law was so powerful?

James H. Metaphor said...

I find that the way laws are writen and the legalese used is ridiculous, and plainly intended to baffle and confuse a layman while allowing the rich to pay lawyers to find them loopholes. For example, article 10 of the DPL, which states:
"10      Right to stop processing that causes distress or damage
(1)     An individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which the individual is the data subject, on the ground that, for reasons specified in the notice –
(a)     the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to the individual or to another individual; and
(b)     that damage or distress is or would be unwarranted."
Read that through and consider it for a moment. What it's saying is you have a right to tell someone, in writing, that you need them to stop for certain reasons. Think about that: the law entities you to need something AND to tell someone. Why do we need a law for that? Nowhere does it give you any power or entitlement to GET what you need, just to need it.

This is followed by:
"(3)     The data controller shall within 21 days of receiving a notice under paragraph (1) give the individual who gave it a written notice –
(a)     stating that the data controller has complied or intends to comply with the individual’s notice; or
(b)     stating the data controller’s reasons for regarding the individual’s notice as to any extent unjustified and the extent (if any) to which the data controller has complied or intends to comply with it."
Read that through a few times. Under the law, if you receive one of these notices, you must do one of two things: either tell them you've done it/will do it OR tell them why you aren't going to do it, with a reason (no rules on what the reason can be, so potentially "cus you wrote your request in the wrong colour ink/on the wrong colour paper for the day in question" or similar ridiculous reasons would be valid) and how much you will do as needed.
Again, nowhere does the law state that the person must obey the notice, just that they have to reply to it. It doesn't even say they have to be honest, meaning they could respond that they have obeyed when they haven't, without breaking the rules stated.

Of course, any lawyer, judge, politician, etc would argue about the intended and/or implied meaning, but taking the law as writen means that the law doesn't really do much, and we have every right to interpret laws as we choose.

Anonymous said...

The JEP reported on the Michael Le Vell story the coronation street actor in court for sex offences they named him in the story.

How does that work?

Anonymous said...

On 17th November, 2010, Mr Syvret was convicted in the Magistrate’s Court of two offences, one of disclosing personal data without consent and one of processing personal data without being registered as a data controller.


(1) An individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which the individual is the data subject, on the ground that, for reasons specified in the notice –


If Mr Syvret was not registered as a data controller why did the four proceed as if he was registered?

The Data controller in Jersey holding the register in Jersey would know Mr Syvret was not on her register why did she not advise the four prior to taking any steps using data protection?

Anonymous said...

I find it interesting that only these four sought restitution through the court. In my opinion this demonstrates that Stuart was telling the truth about others named on his blog.

Anonymous said...

Stuarts beliefs, thoughts and evidence belong to him.


Data protection case tells us that if the named four tell Stuart he is wrong, they are right that's it case over.

What is Stuart to do. Throw the evidence away be a good boy and accept what he is told. why have courts Data protection is the way to go. You cant lose.

rico sorda said...

Hi Anonymous,

I havent registered with the DP office.

rs

Rob Kent said...

This is so blatantly not about Data Protection, it's laughable. Stuart was not in the position of being 'data controller' for the convicted troll, Jon Haworth, so how could he have contravened the act?

A nice game for anyone with too much time on their hands would be to go back and examine the JEP for stories about Lenny Harper and Graham Power to see how they contravened the DPA. Or, indeed, stories about Stuart himself.

I mean, the law must apply retrospectively, mustn't it?

Rob Kent said...

@Anonymous "I find it interesting that only these four sought restitution through the court. In my opinion this demonstrates that Stuart was telling the truth about others named on his blog."

He was telling the truth about those four as well, which is why they did not sue him for defamation. They would have lost their case because he has the evidence to corroborate what he has said about them. In fact, much of it has already been posted on his blog.

Who knows why these four individuals won the States of Jersey libel lottery? Possibly because, having crushed one child abuse investigation, the Powers That Be are confident that the allegations Stuart has printed will never again be investigated by the police or tested in a court of law.

This leaves them free to oppress him using other spurious grounds. Which is odd, because they could have always sued him for defamation and then not allowed his defence case and evidence, as they did in his last trial.

It would be nice if there was a Legal blacklist as well as a Financial one, so that Jersey could be on that too.

Maybe the next Jersey tourist slogan could be: 'Get away from the civilised world and experience a sense of real isolation.'

Anonymous said...

Comment at 11:36: "naming a person and expressing personal opinions on someone, does not constitute 'personal information', for which data protection is all about."

Sorry, but you are 100% incorrect. Jersey's data protection law covers not only fact but also opinion.

People really ought to read this law. It is a horrible bit of legislation - an extremely powerful tool of state censorship in urgent need of reform.

Anonymous said...

Rico,

As tempting as it must be to think elections hardly matter in Jersey, I can see where the veil of unjust concealment has been lifted in the recent past by the combination of citizen activists and elected officials. The Scrutiny Panel investigating BDO Alto was a powerful example. History surely must record that effort as an exposure of a cover-up.

The you and VFC pose at 10:27 and 10:31 today seem appropriate for either a scrutiny panel or an eventual "Truth and Reconciliation" committee. If Jersey avoids scrutiny now, won't it be forced to employ the later to maintain any semblance of democracy in the future?

One more question I'd hope to see asked takes the press to task even more: From passive failures to report critical news, the mainstream media in Jersey has, in my opinion, fully remade itself into an anti-journalism force, actively resisting investigative disclosure, denigrating real investigative journalists from evidenced bloggers to national and international media to published authors. That's a step beyond entirely passive state media reporting.

Elle

voiceforchildren said...

Rico.

Stuart Syvret Super Injunction PART TWO

rico sorda said...

I didn't hear what the Chief Minister said about the cost of the DP action against Stuart but I can't see anything in their annual report.

http://www.dataprotection.gov.je/NR/rdonlyres/B27E7CED-5883-4D6C-A4FE-10667F9DF8D3/0/AnnualReport2011.pdf

HEPLP ANYBODY?

rs

rico sorda said...

Help even.

Where is the money? I hope TJW will have audio up soon on his most excellent blog

rs

Anonymous said...

BBC Radio Jersey ‏@bbcjersey 1h
BREAKING: Cost of Data Protection legal action against former minister Stuart Syvret put at £387,000. More details in Jersey at Five 88.8FM

Anonymous said...

It's always good to read Rob Kent's take on things. The libel case that couldn't be heard because it was true, is quite an extraordinary example.

Just off the top of my head I recall fairly compelling evidence against those four men in the form of recorded death threats, sworn witness testimony in court about abusers, and police records of witness statements by a number of hospital personnel who feared the criminal nurse was murdering patients.

But it wasn't even about these four losers. It was about what the Jersey government had already done, already allowed from them, or what it had failed to do in the role of duty to public protection.

Anonymous said...

So we see from Rico's [postings above that Solicitor General Howard Sharp is in Hansard saying this:

<"The test is whether the data is causing or is likely to cause substantial damage or substantial stress to that individual. That is the test."b>

So this is what decides whether a given case under the Data Protection Act should succeed, and following on from that, whether the DP Office will support the bringing of such a case.

So ANYONE WHO IS UPSET at something written in a blog can now run along to Emma Martins and (if their face fits) bring an injunction / case to remove the upsetting words.

One of our politicians must ask: "(given the answer given by the SG . . .) does it matter if what has been written on a blog IS TRUE? This of course is an absolute defence in a libel case. It rather looks as if this new Law is a way round the truth defence. In other words the DP Commissioner has the power to stop ANY distressing truths being published - by anybody!

So freedom of speech, if this is the case, is dead in Jersey. I think the JEP should also watch out . . .

Please Monty or trevor, put this question.

Anonymous said...

Yes. An odd thing about the truth of your allegations is the way Jersey law is bent for the purpose of keeping facts out of any consideration. That's also happened to you in your prior court cases, notably with denial of a Public Interest defense in a potential life and death situation for the public. Bringing up the evidenced truth makes you appear unpatriotic to some who are content to confuse loyalty to homeland with deliberate promotion of lies.

Anonymous said...

You have to remember that it was the States of Jersey who passed this Law, that would have been before the terrible election of 2008 which saw the election of the likes of Mike Higgins, Daniel Wimberley and Montford Tadier and ushered in a States Assembly, which according to the Powers that Be was full of confrontation and "personal agendas".

Hmmmm, oh for a nice sleepy Assembly . . .

I think that between them they would have spotted what was buried inside this incredible law.

Anonymous said...

The comment at 9:25 was meant for Stuart Syvret.