UK: Data-Mining: No Great Expectations?

Last Updated: 28 January 2014
Article by Gavin Llewellyn

Google has once again come under the privacy spotlight as the EU closely watches US litigation over its use of automatic scanning software which takes keywords from users' e-mails to generate targeted advertising.

The class action proceedings allege that Google's data-mining breaches privacy laws. This follows recent accusations that Google participated in the US National Security Agency's secret surveillance programme, 'PRISM', and the stir caused by Google's implementation of a single privacy policy across all its websites last year.

A legitimate expectation of privacy?

Google's business model is based on the sale of advertisements focussed on individual user behaviour. It achieves this by harvesting users' browsing and now email data. Google sees nothing wrong with the practice and likens it to a secretary opening the office post. It says that people have no legitimate expectation of privacy in information they voluntarily hand over to third parties, emphasising that users' e-mails remain private and highlighting the investment made in automatic encryption to ensure data security.

Critics say they do not expect the Post Office to open their letters, read them and then bombard them with content-related advertising. Whilst perhaps not as heinous as phone-hacking, this practice raises interesting questions for a privacy lawyer. There is a certain amount of trust placed in organisations which provide communication services.

So what would UK law say about this activity? Privacy law has mushroomed in the UK over the last decade, taking our body of law far beyond the principles recognised in Prince Albert's 1849 action to restrain an unauthorised exhibition of prints, to a point where celebrities (such as Michael Douglas and Catherine Zeta-Jones) have been conferred the right to trade in their fame.

Contractual rights of confidence go hand-in-hand with rights under the European Convention on Human Rights ("ECHR") to create a mechanism for the protection of private information. "Private information" is incapable of strict definition. Obligations of confidence and expectations of privacy arise in many ways.

What constitutes protectable private information has to be assessed in accordance with the principles established in ECHR case law. They require a balancing of the competing rights which is usually connected inextricably with the facts at hand, although certain information, such as information about sexual matters or minors, by its very nature often raises a greater expectation of privacy. One right does not automatically take precedence.

Privacy vs. freedom of speech – a question of balance

Article 8 ECHR provides everyone with the right to respect for private and family life, but that right can be interfered with when necessary to protect the rights and freedoms of others, such as the right to freedom of expression in Article 10. That right too is checked by duties and responsibilities, such as the protection of confidential information.

When carrying out the balancing exercise, the courts firstly ask whether there is a reasonable expectation of privacy in relation to the information sought to be protected, then whether the Article 10 right should prevail, for example, if disclosure is in the public interest. A typical scenario involves a newspaper publishing a scandal about a celebrity. Newspapers (as in the Naomi Campbell case against The Mirror) have often argued that they need to disclose private information to correct lies told by a celebrity.

Then there are the 'special relationship' cases. The leading case of McKennitt v Ash involved the singer and her former friend who wrote a book which revealed private information about Loreena McKennitt's personal and sexual relationships. The Court of Appeal held that no express obligation of confidence is needed where there is an existing relationship between the parties and Ms. McKennitt could prevent the publication of the parts of the book which disclosed her confidential information.

How Google and its Gmail users fit into this framework is not so black and white. Do Gmail users have an expectation of privacy in relation to their e-mails? Most people would say they do and rightly so. Most people would also say there is a special relationship between them, akin to the relationship between a person and the Post Office (although no such relationship exists between Google and the user of a different e-mail service). Does that mean that Gmail users can prevent Google from subjecting their communications to an automatic scanning process? It is against the law to interfere with the post, but Google is not impeding e-mail delivery. It says that it is simply scanning e-mails for keywords to make advertising more effective.

Pushing the privacy boundaries

Much of the recent case law has centred around the disclosure of information and celebrities' efforts to prevent salacious information from being disclosed, not so much trading in fame, as seeking to preserve a reputation (as in the unsuccessful attempt by John Terry to protect his reputation from tarnishment). However, the Courts have developed privacy law beyond the disclosure of information to third parties. In the Imerman v Tchenguiz case, in which this author acted for Mr Imerman, the Defendants were accused of breaching Mr Imerman's privacy rights under Article 8 by accessing, downloading or copying and retaining his private information, as well as by disclosing it to various third parties. The Court of Appeal, in joined cases in the Queen's Bench and Family Divisions, held that the Defendants had breached Mr Imerman's privacy rights. It abolished the time-honoured practice in the Family Division referred to as the "Hildebrand rules", which encouraged divorcing couples to raid their spouse's private information, and said that merely retaining private information without its owner's consent was a breach of privacy.

Google is not claiming the right to disclose the content of e-mails to third parties and it seems unlikely that there is any human intervention in the process of scanning e-mails. Google must hold a database of keywords selected from users' e-mails, even if only temporarily, but it is unlikely that such small fragments could constitute confidential information. It is also likely that copies of e-mails will be made as part of the scanning process. Leaving aside questions of copyright infringement and data protection, which are beyond the scope of this article, Google will only breach privacy laws if it does something which goes against the right to respect for private and family life or if it breaches an express or implied obligation of confidence.

In terms of retaining information, this is likely to depend upon how long Google stores any copies it makes of users' e-mails. If copies are made simply as part of the technical process, it seems unlikely that a Court would find on that ground alone that a user's privacy right had been breached, particularly where nobody reads the e-mails and no real harm is inflicted. However, Google is doing more than that. It is using private information to generate targeted advertising from which it generates revenue. When you look at it that way, it looks like a breach of Article 8, whether it is read by a human or not.

Google might argue freedom of expression or the public interest because it is providing more relevant advertising. Google's critics might say that it is neither; it is the generation of revenue from unlawful activity (and a good way of gathering valuable demographic information). Facebook has just settled a class action in America for using, without payment or a chance to opt out, users' details to promote "liked" products and services to friends.

Always read the small print

Then there is the small print. Google says that Gmail users have consented to the automatic scanning of their e-mails by accepting Google's terms and conditions. Ignorance is, of course, no defence or, in this case, sword. Contract law does, however, recognise that there are some terms which are so onerous that, to be enforceable, special notice of them needs to be given prior to the formation of a contract (see Lord Denning's famous comments about red hands pointing to onerous clauses in Thornton v Shoe Lane Parking).

Are Gmail users' Article 8 privacy rights fundamental enough that special notice should be given of a contractual right to breach them? It is certainly an argument worth running. Privacy is now a statutory right. Can Google expect you to waive that right without giving special notice? Google claims that it is ordinary business practice and that e-mail users must expect their communications to be scanned automatically. Most Gmail users have probably noticed that advertisements on their screens seem to relate to the e-mails they send and receive, but how many people think about what Google is doing and would they have signed up to Gmail if they had known?

If all e-mail providers follow this practice, we seem to have little choice, but some would argue that more should be done to draw people's attention to what they are agreeing to and at least provide an opportunity to opt out. Most people would probably expect their Internet surfing to be monitored in some way and would not necessarily have an expectation of privacy in relation to what websites they look at (the use of cookies is a widely known practice and the law now requires users to give their consent to the practice). E-mail users would probably not, however, view their use of a private e-mail account in the same way.

Google might win the US battle by relying on contractual rights, but what of e-mails sent by non-Gmail users to a Gmail account? The non-Gmailer did not give Google its consent, expressly or impliedly, to intercept its communication and there is no contract between them. In a UK Court, Google would have to argue freedom of expression or public interest, but those are very weak arguments.

Privacy lawyers will watch the US litigation closely and Google will probably be contemplating a privacy battle in Europe where freedom of expression rights are not as extensive as they are in America. Meanwhile, Google's application to dismiss a breach of privacy claim in the High Court over its circumvention of privacy settings on Apple's 'Safari' browser will be heard in October. It claims that the UK Court has no jurisdiction because Google operates outside the UK.

If it serves no other purpose, this litigation should at least raise awareness among e-mail users.

A version of this article was previously published in Intellectual Property Magazine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.