Charlotte Fakes and the Data Protection Act – Part 1 – Is Charlotte’s Web Broken?

The Charlotte Fakes Twitter account has been closed and, at least for now, the flow of information from that source has stopped.

This has been a cause of much rejoicing amongst the supporters of Rangers (or at least the small number who frequent their popular message boards). Various fellows there have been suggesting that the police, and in one suggestion the Metropolitan Police, are knocking on Charlotte’s door.

One of the accusations is that Charlotte has broken the Data Protection Act and, as Jack Irvine said in his interview with Andy Muirhead of Scotzine (which can be read in full here):-

AM: A twitter account called Charlotte Fakes has been publishing emails and other correspondence involving you, Whyte, some journalists and Rangers officials – which seem to paint all parties in a bad light. What is your take on what this person is doing?

JI: It is illegal. It is a breach of the Data Protection Act and the perpetrator faces serious consequences when he is caught.

What penalties therefore await Charlotte if caught by the fuzz for this heinous crime?

Depending on the court any criminal proceedings were brought in, Charlotte could face an unlimited …..

…..

…..

fine.

Yes – that is correct.

Breach of the Data Protection Act leaves an offender open to an unlimited fine.

Not imprisonment.

Now, I do not mean to minimise any criminal offence. A crime is a crime, but some undoubtedly are more serious than others.

The apparent leniency of penalties for contravention of the Data Protection Act has been an issue for some years now. In fact it could be argued that the limited penalty for offences under the Act was an important part of the culture of phone-hacking and blagging which infested the News of the World and various other media sources, leading to the Leveson Inquiry.

The Information Commissioner has for some years sought to increase the penalties for breaches of the law, but without success and this summer, many years after the issue was first raised, the UK Government has commenced a consultation regarding an increase in penalty.

The Information Commissioner’s views were prompted to a large degree by Operation Motorman – an investigation in 2003 by his office into alleged breaches of Data Protection law by the British press.

The always excellent Love and Garbage has written about Operation Motorman on a number of occasions, and the fact that it showed that potentially unlawful gathering of information was not simply a problem for Murdoch’s News of the World. A useful explanatory post can be read here.

Part of the problem with the Act is that the sanction, that of a fine, was little deterrent to the “industrialised hacking and blagging” which went on at the instance of various newspapers. It was a risk worth taking by those who viewed money as more important than the law.

In Charlotte’s case there is no evidence that this is being done for money – and indeed if it was, then actually revealing the information for free seems a funny way of going about it!

Has there even been an offence under the Act?

That is a simple question but by no means a simple answer.

The wording of all legislation has become, as time passes, more and more technical and as a consequence less and less intelligible. The Data Protection Act holds a high position, I think, in the ranks of laws which can read as if written in Klingon, or hieroglyphics (and the Rosetta Stone has not yet been found).

The definition of “personal data” under the Data Protection Act, as written in Klingon (which is as comprehensible as the English version!)

I won’t do an in-depth analysis of what it precisely means (unless you are really unlucky), and the effects of the various Data Protection principles. It is perhaps easiest to say that the mere publication of information or documentation without the permission of the author is not necessarily a breach of the criminal law under the Act. (There could be offences relating to the acquisition of the information and civil remedies, such as action for breach of confidence, where information or documents are published, but the Data Protection Act does NOT make every unwanted publication an offence.)

Even if an offence under the Act has been committed, there are various defences which can be put forward.

Ironically it is not necessarily a defence to a charge under the Act that the person publishing the “personal data” (for it is that which is protected) was a party to the correspondence in question – indeed in most cases where there is a breach of the law the offender is a party to it. So, whilst a person could, in some circumstances, escape civil liability for breach of confidence in publishing something the person had themselves written, the same publication, depending on the content, could still be an offence under the Act.

And even if there is an offence under that Act, if Charlotte is outwith the jurisdiction, (which she, he or they may be – or may not), then the cheery visions some commenters elsewhere have had of her being slapped in irons and extradited from whichever country – from Algeria to Zimbabwe – she is in will not be realised.

Why?

Because offences under the Act are not extraditable – for there to be a possibility of extradition to the UK, the offence in question needs to carry the possibility of a prison sentence greater than one year. No possibility of jail = no possibility of extradition.

So, to conclude, Mr Irvine is correct to say that breaching the Data Protection Act is serious. It is also true that there are serious consequences, in the form of a potentially unlimited fine, for a person who commits an offence under the Act.

However, as matters stand, there have not necessarily been any offences committed under the Act.

Where there has been success in forcing Charlotte to remove information she has published, this has been, I suspect, on the basis of confidentiality clauses in the body of or at the foot of the correspondence in question.

I have a few more thoughts on the Data Protection Act and its relevance to Rangers, which will follow soon.

Posted by Paul McConville