I dipped my toe in the curious world of data protection enforcement yesterday [4 June], at the first joint seminar of the DP Forum and NADPO (The National Association of Data Protection Officers).

The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I attempted to give a bit of context to the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information.

In a few bullet points, here’s the gist:

• The premise of ‘Open Justice in the Digital Era’ is simple: enhancing freedom of expression and open justice through digital dissemination of courts data
• Inspired by other initiatives opening up governmental data (e.g mySociety’s WhatDoTheyKnow, TheyWorkForYou etc.)
• But: very little useable data exists at source. It’s public (sort of) but no-one seems to have taken a particularly systematic approach to opening it up
• Our project ran two events in 2012, with view to forming recommendations in due course
• Some of the ideas discussed (not recommendations at this stage) include:
  • The publication of ‘noticeboard’ court lists
  • The publication of court results (see William Perrin and discussion on Information Rights and Wrongs / HonestlyReal)
  • The publication of court documents such as all statements of case, judgments, orders, witness statements and written submissions
  • A reporting restriction notification system (see Scottish courts online system)
  • Wider availability of judgments and judgment summaries (opened under an Open Government Licence)
• Some of this material would be fairly straightforward to open up online, but some suggestions – particularly those around court lists and sentencing data – raise thorny issues for Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation
• Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines. A lot of the way material is published has its roots in journalistic / law reports convention, developed in a pre-internet world, when personal digital records would have been the stuff of dystopia novels
• At present, it’s all very inconsistent – there has been some opening up of courts information around the web (some efforts have encountered data protection objections – see Wigan World’s update, for example)
• The way courts material is handled is raising questions across Europe. In Spain, for example, the National Court (AN) has referred to the European Court of Justice with questions about a search engine result for a debt case, in relation to the Right to be Forgotten
• In 1955, Lord Denning described how a member of the public is entitled to report all that he has seen and heard in the public press. Now, the public doesn’t need the press to do it, but how should it be managed, when it has such a powerful effect on an individual’s digital identity (not only defendants, but victims and witnesses too**)?
• A couple of key questions about the current state of play: Is it logical to allow a private company to access and publish the data in closed/open databases, but not a not-for-profit organisation, or individuals? It is logical, or even possible, to publish courts data online but make it non-indexable by Google?
• In forming recommendations  we must consider these difficult issues around individuals’ privacy rights
• To discuss them is not to be hostile or obstructive to the right to freedom of expression: it is merely being responsible and ethical in our practice. We need to look at both sides of the privacy/freedom of expression coin, in order to assess the best ways of opening up information in the public interest and securing it when it’s legitimate to do so
• A coherent approach to the management of courts data is needed and the MoJ and judiciary should be giving this issue the attention it deserves

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

**As I was reminded in the questions following my talk. Other responses from the group raised even more uncertainties and questions. More views and problematic scenarios are welcome below…