Stuart Skelly: Where to draw the line between the right to privacy and the right to know?

FROM the Court of Appeal victory by JK Rowling banning photographs of her walking down a public street with her children, to the US court ruling that requires Google to divulge details of YouTube users, the rights of individual privacy are constantly balanced against the public's right of access to information.

This issue has been thrust further into the spotlight by events in the past fortnight.

A landmark test case came with the ruling of the House of Lords in its first judgment on the freedom of information (FOI) legislation. It is a decision keenly awaited in Scotland and in England that seeks to balance the public's "right to know" under FOI legislation against legitimate privacy expectations of individuals under data protection rules.

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The case involved a request to the NHS' Common Services Agency (CSA), for details of incidences of childhood leukaemia in Dumfries and Galloway, broken down by census ward.

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

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

The Lords agreed that the requested information was caught by the personal data exemption, but focused on the status of the manipulated data. The judgment looked at whether the information still falls within the definition of "personal data" and "sensitive personal data".

The Commissioner will now have to establish whether the identities of the children contained in the information can be disguised sufficiently so that it does not constitute personal data, and if that is not possible, whether releasing the figures would comply with statutory data protection principles.

In another recent case, which could have global ramifications for individual privacy, web giant Google has been forced by a US court to divulge the viewing habits of everyone who has watched any video clip on YouTube. The court's order is the latest stage of a copyright infringement action being brought against Google (YouTube's parent company) by the major content provider Viacom.The judge dismissed privacy concerns and authorised full access to YouTube user data logs after Viacom argued it needed the data to show whether its copyright-protected footage was more popular than amateur clips.

Access to viewing logs means that viewers can perhaps be identified, thereby potentially threatening their privacy. However, moves are being made by Google to anonymise the logs and require Viacom to respect the users' privacy when analysing the viewing data.

By an ironic coincidence, Google has itself recently been accused of invasion of privacy, with its latest virtual mapping service – Google Street View – set to launch in the UK.

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Street View offers virtual street-level city tours, and, with its potential to include images of people or the inside of homes, it has drawn allegations from civil liberties campaigners that it could lead to invasions of privacy and breaches of UK data protection laws.

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

At the same time as the Lords made their ruling, a UK government-commissioned report from the UK Information Commissioner recommended that councils should be banned from selling edited versions of electoral rolls to companies, and that individuals should have a right to know who companies shared their details with, with businesses that deliberately broke privacy laws liable to be fined.

The right of the public to access information, and the right to privacy of the individual, have been awkward bedfellows and, as the above cases indicate, the tensions between them are set to continue.

• Stuart Skelly is a senior solicitor at HBJ Gateley Wareing