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The History of the Public-Private Divide in Uk Individual Information Law: 1948 to 2017

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The History of the Public-Private Divide in Uk Individual Information Law: 1948 to 2017 View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Apollo THE HISTORY OF THE PUBLIC-PRIVATE DIVIDE IN UK INDIVIDUAL INFORMATION LAW: 1948 TO 2017 OLIVER MICHAEL BUTLER EMMANUEL COLLEGE AUGUST 2018 This DissErtation is subMittED for thE DEgrEE of Doctor of Philosophy. Preface This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration except as declared in the Preface and specified in the text. It is not substantially the same as any that I have submitted, or, is being concurrently submitted for a degree or diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. I further state that no substantial part of my dissertation has already been submitted, or, is concurrently being submitted for any such degree, diploma or other qualification at the University of Cambridge or any other University or similar institution except as declared in the Preface and specified in the text. It does not exceed the prescribed work limit for the relevant Degree Committee. This thesis, including footnotes, does not exceed the permitted length. i CONTENTS CHAPTER 1: THE PUBLIC-PRIVATE DIVIDE IN UK INDIVIDUAL INFORMATION LAW: 1948 TO 2017 Introduction 1 Four Approaches to the Public-Private Divide in Individual Information Law 2 Scholarship on the Public-Private Divide in Individual Information Law 6 Scholarship on the Changing Nature and Structure of the State 9 Emphasis on Revolutionary Change in the Information Society: Continuities in the Public- Private Divide 13 Adoption of a Historical Approach to the Public-Private Divide 16 A Historical Approach Informed by Scholarship on Europeanisation 19 Structure of the Thesis 22 CHAPTER 2: THE PUBLIC-PRIVATE DIVIDE AND CONFIDENTIALITY Introduction 24 The Protection of Confidence 25 Confidence and Commercial Relationships: Market Approaches 28 Confidence and Private Relationships: Individual Approaches 31 Confidence and the State: State-Facilitative and State-Restrictive Approaches 33 Public Authorities and the Public Interest Defence 34 Duties of Confidence to the Crown 39 Duties of Confidence of Public Authorities to Private Actors 43 R (Ingenious Media) v Commissioners for Revenue and Customs 48 The Public-Private Divide in Confidentiality 51 CHAPTER 3: THE PUBLIC-PRIVATE DIVIDE AND EUROPEAN HUMAN RIGHTS Introduction 52 Article 8 ECHR: The Drafters’ Approach to the Public-Private Divide 53 Article 8 ECHR: The Interpreters’ Approach to the Public-Private Divide 56 Positive Obligations and Article 8 ECHR 56 The Vitality of the State-Restrictive Approach in ECHR Jurisprudence 66 Judicial Rhetoric and Article 8 ECHR 67 State Surveillance and Article 8 ECHR 68 The Doctrine of Imputation and Article 8 ECHR 69 ii Elaborating the Negative Obligation on Public Authorities 73 The Public-Private Divide in Article 8 ECHR 77 CHAPTER 4: THE PUBLIC-PRIVATE DIVIDE AND UK HUMAN RIGHTS Introduction 78 The Human Rights Act 1998 80 The Duty on Public Authorities and Functions to Act Compatibly with Article 8 ECHR 82 Review of Legislation for Compatibility with Article 8 ECHR 87 Damages and Public Authorities 95 The Development of the Tort of Misuse of Private Information: The Rise of an Individual Approach 96 Catalysed or Caused by the Human Rights Act 1998 and ECHR? 99 The Tort of Misuse of Private Information and Public Authorities 107 The Public-Private Divide in National Human Rights 109 CHAPTER 5: THE PUBLIC-PRIVATE DIVIDE AND EUROPEAN DATA PROTECTION Introduction 111 The Early Development of European Data Protection 112 Rejection of the State-Restrictive Approach in Early Article 8 ECHR Jurisprudence 114 The Council of Europe and Personal Data 115 The Council of Europe and the 1981 Convention 117 The Organisation for Economic Development and Personal Data 118 European Data Protection: Drafting Data Protection Directive 46/95 EC 118 Market Approaches Tempered by State-Facilitative Exemptions 118 The Role of the Individual Approach in the Development of the Data Protection Directive 119 The 1990 Proposal: A Reconciliation of Individual and Market Approaches within a State- Restrictive Framework 122 The European Commission’s Market Approach 124 Resistance to the Proposed Data Protection Directive 125 The Role of Member States and State-Facilitative Concerns 127 European Data Protection: The Jurisprudence of the ECJ and CJEU 129 A Market Approach to the Data Protection Directive but Comfortable with an Individual Approach 130 A State-Restrictive Approach and Fundamental Rights 133 The Charter of Fundamental Rights and Processing in the Legitimate Interests of the Data Controller 138 iii European Data Protection: Legislative Reforms After Lisbon 140 Development of the Market and Individual Approaches 140 State-Facilitative Dimensions of the GDPR 141 State-Restrictive Developments in the GDPR 143 The Expansion of EU Data Protection in the Field of Police and Criminal Matters 145 Complex Interactions between Difference Approaches: The Public-Private Divide in European Data Protection 145 CHAPTER 6: THE PUBLIC-PRIVATE DIVIDE AND UK DATA PROTECTION Introduction 147 Early Government Resistance to Data Protection 150 Acceptance of Data Protection: Establishing a Market Approach 154 The Data Protection Act 1998 157 Transparency and the Public Sector: State-Restrictive Developments 160 Freedom of Information Amendments to the Data Protection Act 1998 160 Restoring Trust in Public Sector Data: A State-Restrictive Approach from a State-Facilitative Objective 165 The Coroners and Justice Bill 2009, Clause 152 166 Attitude of the Information Commissioner’s Office to the Public-Private Divide 170 The Public-Private Divide in National Data Protection 173 CHAPTER 7: THE PUBLIC-PRIVATE DIVIDE AND UNAUTHORISED DISCLOSURE OFFENCES Introduction 174 Official Secrecy: State-Facilitative Controls on Information 176 Official Secrecy: The Retreat of a State-Facilitative Approach 181 Unauthorised Disclosure and Data Protection 189 Other Unauthorised Disclosure Offences in the Public Sector 190 Taxpayer Confidentiality 193 Struggles Over the Criminalisation of Unauthorised Disclosure 199 CHAPTER 8: THE HISTORY OF THE PUBLIC-PRIVATE DIVIDE IN UK INDIVIDUAL INFORMATION LAW: COMPLEX INTERACTIONS BETWEEN DIVERSE APPROACHES Introduction 201 Europeanisation and the Public-Private Divide 204 iv The Approaches of Various Actors to the Public-Private Divide 205 Confidentiality 207 European Human Rights 208 National Human Rights 210 European Data Protection 211 National Data Protection 212 Unauthorised Disclosure Offences 213 A Historically-Grounded Theoretical Framework for Understanding the Public-Private Divide 214 The Acceptance of the Market Approach 215 The Endurance of the State-Facilitative Approach 216 The Rise of the Individual Approach 217 The Resurgence of the State-Restrictive Approach 218 Understanding the Past and Looking to the Future 219 Bibliography 221 v vi CHAPTER 1 THE PUBLIC-PRIVATE DIVIDE IN UK INDIVIDUAL INFORMATION LAW: 1948 TO 2017 INTRODUCTION One mAjor 21st century chAllenge is the regulAtion of informAtion And, in pArticulAr, informAtion About individuAls. In the United Kingdom, the regulAtion of individuAl informAtion hAs A history extending bAck to At leAst the 19th century. ThAt history spAns severAl overlApping legAl regimes. In pArticulAr, those regimes Are confidentiAlity, the right to private life, dAtA protection, And officiAl secrecy And unAuthorised disclosure offences. The regulAtion of individuAl informAtion is A “socio-technical problem”1 of enormous complexity, difficulty And importAnce. It hAs emerged during A period of vAst technologicAl, sociAl And political chAnge And lies At the interfAce of technology And institutions, both public And private. The regulAtion of individuAl informAtion is an importAnt aspect of the broader infrAstructure within which individuAls, mArkets And institutions Act.2 InformAtion flows Are cruciAl to the success of both public services And private mArkets, fAcilitAted by rApid technological development. InformAtion systems hAve intensified some risks of processing And using informAtion And creAted newly perceived dAngers for individuAls And society. Intensified risk And new purported dAngers in turn threAten to undermine the benefits brought About by the development of informAtion systems And pose new chAllenges for regulAtion. This thesis Adopts An ArchitecturAl perspective. It Asks how And why the Architecture of individuAl informAtion lAw hAs been developed in relAtion to the public-private divide. By public-private divide, I meAn the wAys in which public Authorities Are regulAted differently from private Actors in relAtion to individuAl informAtion. The overlApping legAl regimes Affecting individuAl informAtion lAw hAve often been AnAlysed in isolAtion from one Another. This thesis seeks to identify common ApproAches to the public-private divide Across the history of individuAl informAtion lAw. The AnAlysis demonstrAtes A common set of concerns And ApproAches Across these distinct but overlApping regimes for the regulAtion of individuAl informAtion. I use the term individuAl informAtion inclusively, conscious of the differing scope of confidentiAl, private, personAl, officiAl And officiAl individuAl-identifying informAtion or dAtA Across the AreAs of lAw studied. Although there Are differences in scope, these AreAs All 1 Helen NissenbAum, Privacy in Context: Technology,
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