Julian Copeman and Jan O'Neill of Herbert Smith Freehills LLP consider how the General Data Protection Regulation (679/2016/EU) applies when dealing with personal data in the context of court proceedings.
In the flurry of activity around the commencement of the General Data Protection Regulation (679/2016/EU) (GDPR) in May 2018, many organisations committed extensive resources to conducting data protection audits, assessing the extent to which their activities involved the handling of personal data and considering whether their processes complied with the new legislation (see feature article "GDPR one year on: taking stock", www.practicallaw.com/w-020-0982). Understandably, the focus in these reviews tended to be on the organisations' regular operational activities.
An issue that has received less attention, even within the legal industry, is the question of how the data protection rules apply when organisations are handling data in the context of litigation.
Data protection laws existed before the GDPR and the new rules relevant to the litigation process do not, for the most part, introduce a wholesale change from those that applied previously. However, it is probably fair to say that the question of how those rules apply within the litigation process was not previously high on the radar of many litigants.
To the extent that the issue has been considered, many may have simply assumed that where personal data is being collected and disclosed in the context of a formal legal process, it must be covered by some statutory exemption. However, the position is not quite so straightforward. While the GDPR does contain a number of provisions that effectively legitimise the processing of personal data when it is undertaken in connection with the exercise of legal rights, each of those provisions is specifi c to particular obligations in the legislation. None of the provisions apply across the board so as to allow a party to effectively disregard data protection in a particular context.
Adding to the complexity is the fact that the legal-related exemptions are each worded differently and potentially cover a different scope of legal activities, such as distinguishing between the conduct of legal "claims" and the exercise of legal "rights". Even among legal practitioners, the topic may have been considered too complicated while more immediate day-to-day operational risk areas were addressed.
However, with data protection now well and truly in the mainstream consciousness, it seems almost certain to feature more prominently within the litigation process in the coming years. Individuals who now have a greater awareness of their rights in this area are more likely to seek to exercise those rights and parties to litigation may explore the scope to use data protection as a further weapon in their tactical armoury. One increasingly discussed example of this is the tactical use of data subject access requests as an adjunct to the formal disclosure process, which is beyond the scope of this article. At a more basic level, many involved in litigation are realising that any breaches of the GDPR within the litigation process are now considerably more likely to be identifi ed and result in action, underpinned by the threat of much greater regulatory fi nes. It is therefore more important than ever for litigants and their advisers to have at least a high-level understanding of how the GDPR interacts with the litigation process.
It is beyond the scope of this article to attempt to examine all of the obligations under the GDPR that apply to each of the activities involved in a typical commercial litigation process. Instead, the article highlights some of the key concepts and rules, and delves more deeply into a number of issues that have prompted questions and concerns within the legal industry. In particular, it considers concerns that have been raised as to whether parties should be amending their current practices regarding the redaction of irrelevant personal data in disclosure. Although this article does not consider the issues specifi cally in the context of commercial arbitration, much of the discussion will apply similarly in that context.
THE KEY CONCEPTS
The various defi nitions of key concepts under the GDPR raise some important questions in the context of litigation proceedings.
Processing personal data
Under the GDPR, "personal data" means any information relating to a natural person who can be directly or indirectly identifi ed. As most people now appreciate, this catches information that would not traditionally be thought of in litigation as particularly confi dential or sensitive. For example, it may include the contact details of an addressee or sender in a piece of correspondence, even where those details are their offi ce contacts and not private addresses. It is therefore immediately apparent that a very large proportion of documents dealt with in a typical litigation process will contain personal data.
Similarly, the concept of "processing" personal data, which is the key activity to which many data protection obligations apply, is defi ned so broadly that it should be assumed that anything that is done with data in the context of a dispute will be caught, including even passive activities such as receiving and storing it.
"Special category" personal data
Certain categories of personal data are given extra protection under the legislation (see box "Special category personal data"). Any dealings with this type of data need to be justifi ed to a higher level (see "Requirements for special category data" below).
One notable thing about the list of special category personal data is that it does not include information regarding an individual's fi nancial dealings or status. Although many people might regard their salary details and bank account information as much more sensitive than, say, their ethnic origin, this fi nancial information will be treated as merely standard personal data under the GDPR. However, this does not mean that these data can be processed and disclosed with impunity any more than they could be before the GDPR came into force.
Data controllers and processors
Under the GDPR, a data controller is a person or body that, either alone or jointly with others, determines the purposes and means of processing personal data. A data processor is a person or body responsible for processing personal data on behalf of a data controller.
The majority of participants in the litigation process will normally be data controllers. That includes the parties, their solicitors and counsel, other advisers, experts, the courts and mediators. However, service providers whose role is primarily processing documents or other forms of information, such as e-disclosure platform providers, document review services, translators, stenographers and transcription services, are more likely to be data processors.
One of the reasons the controller and processor categorisation is important is that the primary data protection obligations under the GDPR fall on data controllers, although data processors do also have specified obligations. This means that once personal data are provided to another controller, such as by sending materials to counsel or by providing copies of disclosed documents to an opposing party, that other controller will assume their own responsibilities for dealing with those data in a manner that complies with the GDPR. Accordingly, as a broad rule, it is not necessary when providing such materials to make that provision subject to any formal condition or assumption that the recipient will deal with it in a GDPR-compliant manner, although in some circumstances it may be good practice to remind the recipient of the presence of personal data.
Another key reason that the controller and processor distinction is important is that, where a data controller engages a data processor, the GDPR specifi es mandatory contractual provisions that must be put in place to regulate this relationship (Article 28, GDPR). Sometimes, terms of engagement proposed by others engaged in the litigation may contain provisions purporting to confi rm their role as a data controller or processor. For the above reasons, it is important to ensure that any such characterisation aligns with the party's understanding of that entity's role and that any contract with an entity identifi ed as a data processor is in a form that meets the statutory requirements.
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