UK: Data Protection, Porn And Norwich Pharmacal Orders…

Last Updated: 4 November 2019
Article by Nick Phillips

If proof was needed that GDPR is everywhere, then this case is it. The case involved an application for a Norwich Pharmacal Order or NPO (basically an order requiring an innocent party to disclose names of potential defendants and so-called because of the case that first established the availability of these orders). In this case the applicant sought an order requiring the disclosure of the names and addresses of tens of thousands of residential broadband subscribers who were accused of infringing copyright by downloading explicit pornographic films.

The application was contested on a number of grounds including that if it was granted, the discloser of these names would offend against the data protection principles set out in the General Data Protection Regulation (GDPR).

The effects of the GDPR have been both significant and far reaching with recent fines in the tens or even hundreds of millions being levied against organisations who have suffered data breaches. The recent consolidated cases of Mircom International Content Management and Consulting Ltd and Ors and Golden Eye International Ltd and Ors v Virgin Media Limited and Persons Unknown [2019] EWHC 1827 (Ch)  (Mircom v Virgin Media) considered the GDPR in a different light. Specifically, how it relates to NPOs where the subject of the order is personal data (as it often is in the cases).

Background:

The Claimants, companies which produced pornographic films and other companies involved in obtaining disclosure orders, sought to obtain a NPO against Virgin Media to compel them to provide the names and addresses of their residential broadband customers that had downloaded adult films of which the Claimants were the copyright owners.

Golden Eye were relying on their prior success against Telefonica/O2 back in 2012, stating their belief that the precedent set by the case of Golden Eye v Telefonica Ltd was still the correct legal approach. This was decided in the same way as any other application for a NPO, for which the requirements are as follows:

  1. There exists a good arguable case that wrongs have been committed against the Applicant;
  2. the Respondent to the application is mixed up in those wrongs;
  3. the Claimant is genuinely intending to seek redress for the wrongs;
  4. disclosure of the information sought is necessary for the Applicant to pursue the aforementioned redress;
  5. the order sought is proportionate having regard to the privacy and data protection rights of the intended defendants;
  6. the court should exercise its discretion in favour of granting relief.

In seeking to resist the application for an NPO, Virgin argued, amongst other things, that this was no longer the correct approach in the current circumstances following the coming into force of the GDPR in May 2018.

The effect of the GDPR

  • Derogation for Court Orders

Virgin's interpretation of the law was not shared by the Court who stated that "nothing turns on the GDPR", citing Schedule 2, Part 1 of the Data Protection Act 2018 (the DPA). This schedule makes a number of the provisions in the GDPR inapplicable for several purposes connected to legal proceedings. Specifically, "where disclosure of the data is required by... an order of a court" or where disclosure is "necessary for the purposes of establishing, exercising or defending legal rights". Thus, where litigants receive personal data as part of the disclosure process, many of the more stringent provisions of the GDPR will not apply.

  • Data controller v data recipient

In addition, the court felt that it was necessary to determine whether if the NPO was granted, the Claimants would become "data controllers" within the meaning of article 4(7) of the GDPR, or would instead be "data recipients" within the meaning of article 4(9), of the GDPR. The court appears to have accepted the Claimants' argument that even if disclosure was made, the Claimants would still not determine "the purposes and means of the processing of personal data" as is a requirement for being considered a controller under Article 4(7) of the GDPR. It was therefore decided that as the purposes and means of processing would be determined in accordance with the order and the Civil Procedure Rules, the claimants would be "recipients" instead of "controllers".

Comment

This aspect of the case is a little baffling and we don't think that many people would have previously considered that there would be a separate category of "data recipient" who were neither "data controllers" or "data processors". Our view is therefore that this aspect of the Court's decision is probably a little questionable, and that a better analysis might have been that the Claimants would have been both data recipients and data controllers for the purposes of the GDPR, albeit in circumstances where the effect of Schedule 1 Part 1 of the DPA was such as to disapply many of the provisions of the GDPR with respect to this personal data. In any event, the GDPR ultimately had little effect on the decision, although it will be interesting to see whether future cases pick up on the distinction between a "data recipient" and a "data controller" that the court drew in this case. It might even be something that the ICO wants to try to clarify with some guidance.

The outcome

Nevertheless, the order in this case was not granted as the evidence provided by the Claimants was deemed inadequate and thus failed on the basis that the they did not have a good arguable case. Further, the court considered how the Claimants had actually used the information provided in the previous case. However, this was not addressed by the evidence presented by the Claimants, although it was not cited as a reason for refusing to grant the order.

Conclusions

Whilst the GDPR has not significantly changed the law in relation to Norwich Pharmacal relief, there are a number of other notable points to come from the case that need to be considered in light of this judgment.

One such point relates to the potential of the court to review the Claimants' practices in relation to any information received as a result of the granting of previous orders and whether the Claimant genuinely sought redress. Moreover, future applicants for Norwich Pharmacal relief should consider the clarity and comprehensiveness of any evidence they intend to submit for consideration by the court in relation to the order.

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 Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions