Platform: Tricky balancing act between right to know and right to privacy

Published on Wednesday 8 April 2009 22:08

GOOGLE Street View, the controversial mapping service that has stirred some resentment, allows individuals to view 360-degree images of the road outside any address on virtually any street in 25 UK cities.

However, with its potential to include pictures of individuals or the inside of a person's house, the campaign group Privacy International has lodged a complaint with the Information Commissioner. This is over claims that a number of people in the Street View photos are identifiable, despite sophisticated special technology to blur faces and number plates, and that this is a breach of privacy.

It certainly seems that this argument has some way to run yet and that the concerns Street View has raised might not be quite as simply addressed as similar concerns in other arenas. It is hard to see, for example, that a code of practice, such as the one implemented for CCTV to address concerns arising in respect of increasingly widespread and advanced systems (both public and private), would provide the level of assurance being demanded here.

Indeed, it reinforces the fact that the right of individual privacy and the right of access by the public to information are awkward bedfellows indeed.

A landmark test case in this area came with the ruling of the House of Lords in its first judgment on the Freedom of Information (FOI) legislation. It is a decision that had been keenly awaited both in Scotland and in England as balancing the public's "right to know" FOI legislation, against the legitimate privacy expectations of affected individuals under data protection legislation.

The case involved a request to the Common Services Agency (CSA), a branch of the NHS, for details of incidences of childhood leukaemia in Dumfries and Galloway.

The request was refused by the CSA, which argued that this information was exempt under the Freedom of Information (Scotland) Act 2002 (FOISA), on the basis that FOISA prevents disclosure of personal data about third parties.

When the requester appealed to the Scottish Information Commissioner, he agreed it was personal data, but he ordered the CSA to manipulate the data to reduce the risk of identification of the individuals concerned. This approach was upheld on appeal to the Court of Session, but appealed by the CSA to the House of Lords.

In their ruling, the House of Lords agreed that the provision of the information originally requested was caught by the personal data exemption, but focused on the status of the manipulated data (referred to as "barnardised data") and whether these still fall within the definition of "personal data" and "sensitive personal data". On this issue, the Law Lords were rather inconclusive.

Nonetheless, the decision highlights the need for public (and some private) bodies to consider carefully the nature, content and form of information they hold on individuals when determining whether this amounts to personal data (or sensitive personal data) which should be withheld or disclosed in response to an information request.

With continuing technological advances in the collection, retention and dissemination of information, including personal data, the privacy of the individual is increasingly seen as being under threat.

The tensions between the public's right to access information and the right to privacy of the individual are set to continue well into the future.

&#149 Rebecca Andersen is a solicitor with the law firm HBJ Gateley Wareing.