Data collation can evade Data Protection Act, says Court of Appeal

The Court of Appeal overturned a High Court decision on the issue of the creation of personal data, though the practical result of both rulings was the same.

David Paul Johnson took a case against the Medical Defence Union (MDU), a non-profit body which provides indemnity policies for its members. The MDU had refused to renew Johnson's policy after it conducted a review of his case and Johnson argued that the organisation had not processed his data fairly and had therefore breached the Data Protection Act.

The MDU operates a scoring system of its own invention which allocates points to certain complaints or allegations made against a doctor, even if they are never proved or pursued.

By 2002 Johnson, who had been an MDU member since 1986, had built up enough of these points to trigger a review of his policy by the MDU. He had built up points by consulting the MDU over professional issues, including complaints. He had never been the subject of a claim of professional negligence.

His case had been judged after an MDU staff member had looked through his files and collated information from them into a new computer document. Most of the files were manual and fell outside the Data Protection Act's definition of a "relevant filing system". Three were computer based, though, and so their use was controlled by the Act.

Johnson claimed that this task was processing, as defined and controlled by the Act's first principle, which says that processing of personal data must be fair and lawful. Johnson claimed that his data was unfairly processed, in breach of the Act.

The High Court agreed that the activity carried out by the MDU was processing under the Act, but said that it was unfair only in a minor and inconsequential way, and that therefore there was no breach.

Both parties appealed the judgment, Johnson arguing that the processing was unfair and the MDU arguing that the High Court was wrong to say that its actions counted as data processing.

The Court of Appeal said that the actions were not data processing. "Mr Johnson, who agrees that he has no right in contract or in any other chapter of English law to challenge [MDU examiner] Dr Roberts's selection of the information contained in his personal data, asserts that he can nonetheless mount these proceedings because her act of analysis is covered by the First Data Protection Principle," said presiding judge Lord Justice Buxton in his ruling.

"I would not be prepared to conclude that the 1998 Act has had that effect, and the other widespread effects suggested above, unless I was driven to it. Far from that being the case, neither the 1998 Act nor the Directive give any support to the appellant's case. I would therefore hold that the Judge was wrong to find that Dr Roberts's selection of the data amounted to processing of data in the terms of the Act," he said.

Though one of the judges dissented, that remained the decision of the Court. Johnson had applied for leave to appeal some aspects of the case to the European Court of Justice, but the Court said that it would not grant that leave because the case could be decided on elements that did not need referral. "There are substantial grounds why the appeal must fail in any event. That being so, it would not be appropriate to occupy the time of the ECJ on matters that cannot affect the outcome of the litigation," said Buxton.

In arriving at its judgment the Court of Appeal distinguished the 2003 ruling in Naomi Campbell's famous privacy battle against Mirror Group Newspapers. That decision, also by the Court of Appeal, was based on facts that were different in significant ways, reasoned Buxton.