The right to be forgotten and the removal of information that may disproportionately impact the lives of individuals

Last week, an individual won his legal action against Google in connection with what is known as the “right to be forgotten” in a UK High Court case.

The right to be forgotten (also referred to as the right to erasure) is a precedent set by the Court of Justice of the European Union in 2014. It allows people to request information (about them) to be removed where it is no longer relevant but disproportionately impacts their lives. Search engines can decline to remove such pages if they declare their content to be in the public interest. Google have mentioned that since 2014 there have been 655,000 requests, demanding the removal of almost 2.5 million links.

The individual (referred only as “NT2”) won his legal action to compel Google to remove search results about past criminal convictions. NT2 was convicted of conspiring to intercept communications 10 years ago and spent 6 years in jail as a result. A separate claim brought against Google at the same time by another individual (referred to as “NT1”) was dismissed by the court on the basis that the crime he committed was more serious and therefore the information about his crime should not be removed. Google’s legal representative stated that Google will not allow people to re-write “history” or “tailor [their] past”.

As a result of the ruling, Google (who have generally been reluctant to honour “right to be forgotten”) requests will now be required to remove any historical articles about the businessman intercepting communications in the past. Google has confirmed that it will accept the ruling.

The General Data Protection Rules (GDPR) which comes into force in May this year will incorporate the right to be forgotten under Article 17. The right is not absolute and only applies in certain circumstances including where the personal data is no longer necessary for the purpose it was originally collected for, where consent to hold the data is withdrawn or where the personal data has been processed unlawfully. Parties holding such data that is the subject of such a request shall have one month to respond to it.

Tate Chakrabarty

Tate Chakrabarty                                            
Associate Solicitor
Corporate and Commercial Team            
TChakrabarty@LawBlacks.com                
0113 227 9260  

Posted in Company & Commercial Law | Leave a comment

Sands of Time : Discretion and limitation

The periods set out in the Limitation Act 1980 are relatively generous. Most civil matters must be brought within 6 years of the event that triggered the claim and there are a variety of special circumstances that may allow particular types of claims to be brought even later than that, or impose a stricter limit. Debts based on “specialties” – created by a deed, like a mortgage, have a 12-year limitation period. Claims for compensation for injury, on the other hand, have a three year period, but the three years runs from either the date of injury or, alternatively, the date of knowledge of the injury. This last provision is extremely important when claiming for conditions such as industrial injury – for example asbestosis or industrial deafness, where the initial triggering incident may be long past by the time the claimant discovers the condition.

However, once the limitation period is up, this usually means the claimant is out of luck. The courts generally expect a claimant to act with reasonable promptness, and the time limits are intended to give people more than adequate time to make the decision to claim, and to conduct any required research and evidence gathering. If the claimant leaves matters too late then, under most circumstances, the claim cannot be brought no matter how well-merited.

In a few limited areas of litigation, however, the courts retain a residual discretion over such limitation periods, giving a narrow chance of bringing a late claim. Most recently under the legal spotlight, section 33 of the Act permits the court to stretch limitation for claims for personal injury or death where it is equitable to do so. In coming to a decision, judges are expected to consider the length of delay and the reasons for it, and how much that delay will affect the parties’ and witnesses’ ability to provide evidence.

This section was tested recently in the case of Carroll v Chief Constable of Greater Manchester. The claimant was a former undercover policeman exposed to narcotics at work who subsequently became a drug addict, suffered from depression and eventually lost his job and received a criminal conviction. The initial addiction occurred in 2009 and the claimant, after some back and forth, conceded that his knowledge of the issue dated back to this year. The claim was brought in 2013, outside the 3 year period for personal injury claims.

The court considered that, under the circumstances, the delay had not prejudiced the defendant. The police authority had argued that the loss or destruction of documents in the intervening time impacted its ability to defend the claim but had not been able to provide compelling evidence as to when such documents had been destroyed (or, it seems, if some documents had even existed).

Another issue this case looked at was whether it was reasonable for Carroll to conceal his drug addiction from his GP when being treated for depression. As the addiction would likely have led to his earlier dismissal from the Force, the court ruled that he had acted reasonably in hiding it.

The decision in this case leaves defendants on the back foot with personal injury limitation periods. Defendants intending to rely on limitation to ward off a claim must be able to show that the additional lapse of time has had a material effect on the chance of the claim receiving a fair and informed hearing.

Adrian Czajkowski

Adrian Czajkowski
Legal Executive
Commercial Dispute Resolution Department
ACzajkowski@LawBlacks.com
0113 227 9296

Posted in Commercial Dispute Resolution | Leave a comment

The Modern Approach to “Meal Tickets” – Court overturns Order that granted a millionaire’s ex-wife maintenance for life

The Court of Appeal (“CoA”) yesterday reaffirmed the Court’s more modern approach to spousal maintenance,  championing “clean breaks” between divorcing couples and limiting claims for ongoing spousal maintenance (reports of the story are accessible both here and here).

In Waggott v Waggott [2018] EWCA Civ 727, the CoA overturned a previous ruling that would have granted the ex-wife of a millionaire travel boss £175k for life by ruling that her maintenance payments should cease after just three more years.

In 2012, Mrs Kim Waggott (“W”) petitioned for divorce against her former husband, Mr William Waggott (“H”), after finding about affairs he had over the course of their marriage.

H and W both trained as Accountants and met in 1990 when working for Coopers and Lybrand.  They married in 2000 and had a daughter with W giving up her job of 5 years with UCI Cinemas in 2002 to stay at home and look after their child.  H continued to climb the corporate ladder and in early 2011, he became the Chief Financial Officer of TUI Travel, formerly Thomsons.

Shortly thereafter, W discovered that H was having an affair with a colleague at work.  That affair allegedly ended after W confronted H about it.  Unfortunately, in Autumn 2012, W found out that H was having another affair with a different woman.  This time, after W confronted H about it, he moved out of the former matrimonial home and they separated.

W then issued divorce proceedings together with substantive financial remedy proceedings against H.  In 2014, when they divorced the couple’s overall assets were valued at £16.4m with W being awarded capital resources of £8.4m compared to the £7.8m awarded to H.  W also received an additional sum of just under £1.4m, representing a share of deferred remuneration that H received post separation, bringing her total award to £9.76m.

On top of this, W was awarded annual spousal maintenance payments of £175,000 for the rest of her life, or until her remarriage.  At the time, W’s successful argument was that fairness dictated that her maintenance award should continue due to the support she gave H and the sacrifices she made for the family during their long marriage rather than on the basis of an argument based on having a financial need for ongoing support. However, this line of reasoning has not been readily followed in subsequent cases.

In November 2017, W went back to Court and asked for a £23,000 per year increase in her annual maintenance payments to take account of H’s future earnings, in particular a 35% share of future bonuses.  W argued that due to the disparity in earning capacity she was entitled to a share of H’s post separation earnings as this was built up over the course of their marriage.

In response, H challenged both W’s appeal and original Order granting the maintenance payments for life.  H sought to kill two birds with one stone by advancing an argument that a marital partnership does not stay alive for the purposes of sharing future resources unless justified by the needs of either party.  The long and short of H’s argument was that “surely with £9.7 million [W had] sufficient resources for the Court to be able to fairly to effect a clean break.”

Lord Justice Moylan (“LJ Moylan”) laid down a comprehensive judgment (accessible here) in which he dismissed W’s appeal holding that earning capacity is not a matrimonial asset to be shared out and that “any extension of the sharing principle to post-separation earnings would fundamentally undermine the Court’s ability to effect a clean break.

In line with the Court’s recent approach, LJ Moylan went on to accept the Husband’s argument on the basis that W not only wouldn’t face any “undue financial hardship” by stopping the maintenance payments but she had considerable earning capacity herself.  There was nothing to prevent a clean break and on that basis, he ordered that her maintenance payments shall cease in March 2021.

In a rather candid closing, LJ Moylan went on to suggest that W could even make up the “shortfall” of the maintenance payments by investing roughly 10% of her original award and simply living off the interest;  should the remainder of her £9.76 million pay-out not be enough she could always go back to work.

As reported by the Family Law Gazette here, this is just the latest in a trend of cases which underscore the Court’s growing reluctance to award ongoing spousal maintenance awards when a clean break remains a genuine possibility.  The days of Court’s making generous provisions for ongoing  spousal maintenance certainly seems to be on the wane with former spouses now more often than not expected to seek to become financially independent following a divorce; especially when it is apparent that they will not suffer any “undue hardship” from a clean break.

Taking stock of recent case law we believe that going forward we will see more use now of term orders (where maintenance is set for a fixed number of years rather than on a joint lives basis); that there will be less spousal maintenance orders made and the ones that are in general are likely to be for lower amounts than may have been awarded in the past if they are to be assessed on the basis of avoiding “financial hardship” rather than on the basis of financial entitlement.

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

Posted in Family Law | Leave a comment

Cutting a cohabitee out of your will?

The recent case of Thompson v Raggett has highlighted the risks of cutting a cohabitee out of your will.  In this case Ms Thompson had lived with her partner, Mr Hodge, for over 40 years.

Over the years Mr Hodge had made several wills in which Ms Thompson was a beneficiary however in his last will , written only two months before he died, he decided to cut her out completely.  Part of his reasoning was a dislike of her children and a wish that they would not inherit anything from him.  He had also assumed that due to Ms Thompson’s health problems she would not be able to live independently after his death and did not need his money.  Indeed she had been temporarily in a residential home at the time of his death however an occupational therapist had assessed her as being able to return home with adaptations and a care package.

The court held that under the Inheritance (provision for family and dependants) Act 1975 Ms Thompson could claim reasonable financial provision for her maintenance.  She had been living as Mr Hodge’s wife at the time of his death and was financially dependent on him.  The judge decided that Ms Thompson had a right to expect provision to be made for her and that this provision should not be hindered because of Mr Hodge’s dislike for her children.

Mr Hodge’s estate was valued at about £1,500000, consisting mainly of properties and land.  The main beneficiaries of his will were tenants in one of his properties.  Ms Thompson was awarded a property to live in, valued at £225000, £28,844 for adaptations to be made to the property for her, and £160,000 for her ongoing needs.

This case highlights the impact of the 1975 Act in limiting testamentary freedom to leave your estate to whoever you want and the protection available to those who were dependant on you.

Nicola White

Nicola White

Nicola White
Associate Solicitor
Wills and Probate Team
0113 2279235
NWhite@LawBlacks.com

Posted in Wills and Probate | Leave a comment

Reform, reform, reform – family law issues for the ages

Sir James Munby, the President of the Family Division has recently delivered a speech at the University of Edinburgh Law School castigating the speed of progress of reform in family law. Particular focus was given by Sir James regarding cohabitant’s rights, no-fault divorce, financial relief after divorce, access to and reporting of family cases and the cross-examination in person by alleged perpetrators of domestic violence of their alleged victims.

Certain of these issues were earmarked to be implemented as long ago as 1996, so the debate is just about older than most of our LPC graduates. The lack of financial protection for cohabitants and the continuing requirement for finding of fault in divorce petitions seem particularly archaic but parliament continue to be apparently resistant to change.

Regarding no-fault divorce in particular, Resolution which is a national body of family lawyers and other professionals committed to the constructive resolution of family disputes, has succeeded in an application to intervene in the case of Owens v Owens, the appeal for which is soon to be heard by the Supreme Court.

Owens v Owens is a case in which thus far the wife has been unable to obtain a divorce from her husband, on account of the initial trial judge being of the opinion that the husband’s behaviour was not ‘unreasonable’ and hence there being no fault attributed to the husband sufficient to establish that the marriage has broken down irretrievably.

Family lawyers and Resolution members in particular await the Supreme Court appeal with bated breath. Whilst the decision will not allow the statute books to be rewritten on divorce, experts believe that a successful appeal will lend even further weight to the argument in favour of no-fault divorce.

Andrew Smith

Andrew Smith
Associate Solicitor
Family Law Team
AJSmith@LawBlacks.com
0113 3222807
@AndyLawBlacks

 

Posted in Family Law | Leave a comment

Court condemns Facebook’s use of personal data

After a lengthy battle with the Federation of German Consumer Organisations (“FGCO”) regarding Facebook’s data protection policies, the Berlin Regional Court (“BRC”) has found that Facebook’s use of its users’ data was illegal.

Facebook had failed to obtain consent to use personal data for their advertising purposes, according to the BRC. The social media giant’s failure to obtain consent was a result of its default privacy settings applied to each user account, including the default activation of the location services for those using the Facebook app, particularly given the lack of information provided to its users.

Heiko Dünkel, the litigation policy officer for the Federation of German Consumer Organisations, said “Facebook hides default settings that are not privacy-friendly in its privacy centre and does not provide sufficient information about this when users register. This does not meet the requirement for informed consent”.

All five of Facebook’s default privacy settings were deemed to be illegal, one of which allows search engines to link to a user’s timeline, as well a further eight of the clauses contained in their Terms and Conditions, including a provision which allows Facebook to transmit data to the US.

This verdict comes ahead of the implementation of the General Data Protection Regulations (Regulation (EU) 2016/679), or ‘GDPR’. The European Parliament intends to strengthen and unify data protection for all EU citizens and GDPR will see stricter controls to govern the processing and storage of data. GDPR will come into force on 28 May 2018 and will affect all companies storing personal information about citizens in Europe, including companies on other continents.

Hayley Blackburn

Hayley Blackburn
Paralegal
Corporate and Commercial Team
HBlackburn@LawBlacks.com
0113 207 1099

Posted in Company & Commercial Law | Leave a comment

Cambridge Analytica and the investigative and corrective powers of the ICO

I first heard about a company called Cambridge Analytica in January 2017.  Having an interest in data protection matters due to the nature of my work, I was actually fascinated by a company that claimed it could assist political campaigns to produce highly precise targeted Facebook ads and that their services were employed by both the Trump campaign and the Brexit Leave campaign.  I was not shocked at the time but do recall sharing the article via a WhatsApp group with my inner-circle of friends – a motley crew of fellow lawyers, doctors, academics, company directors, architects and IT professionals from across the world. Those in this group, who work in commercial and business sectors discussed the inevitability of this happening and were surprised (myself included) that it had taken so long for it to occur given people have openly shared highly personal information with Facebook since around 2006. Any company with the right data mining tools would indeed discover hidden treasure from all the information that is out there.

Cambridge Analytica are a British company who operate out of London.  As such, they are subject to UK data protection law.  The furore over the past 24 hours concerns data acquired by a company about Facebook users under the pretext of academic research. This data was then sold onto another company – Cambridge Analytica, whose intention was to use it very differently. Cambridge Analytica it seems, hold Facebook data on people who have not agreed to share it directly with them. For clarity, this is not a data breach contrary to what has been described in a great deal of global media coverage over the past 24 hours.

The Information Commissioners Office (ICO) have said they shall apply for a warrant to search computers and servers used by Cambridge Analytica amid concerns about the company’s activities.  The Information Commissioner – Elizabeth Denham, has criticised Cambridge Analytical for being “uncooperative with her”.  The fact however that Cambridge Analytica have been alerted to the ICO’s intended application for a court warrant detracts from the impact that a sudden inspection would have had upon the offices and indeed personnel of Cambridge Analytica.  Such a warrant shall take time to acquire and it is required under the current law (the Data Protection Act 1998) as the ICO have no such powers to inspect at will.

Under the General Data Protection Regulation (GDPR) which comes into force on 25 May 2018, the ICO shall enjoy much wider investigative and corrective powers under Article 58 of GDPR.  These will include the power to undertake on site data protection audits, the power to issue public warnings, reprimands and audits to carry out specific remediation activities.  If such a situation as with Cambridge Analytical today was to arise after May 2018, the ICO would be able to order the company or organisation in question to provide virtually any information it would require to perform its tasks.

Applied to your own company, awareness of these investigative powers the ICO shall gain shortly, should be considered when determining data protection policies both internal and external to your company. Transparency and record keeping will both become accepted practices over time.

Tate Chakrabarty

Tate Chakrabarty
Associate Solicitor
Corporate and Commercial Team
TChakrabarty@LawBlacks.com
0113 227 9260 

Posted in Intellectual Property | Leave a comment