Information Rights and the Internet

Lord Sumption has said that the Freedom of Information Act 2000 was a landmark enactment of great constitutional significance. Chapter 1 identifies the separate regimes for obtaining access to information: the FOI Act; the Environmental Information Regulations; and the Data Protection Act 1998. It explains the differences between them and the part which is also played by the common law. Following Edward Snowden’s revelations about the surveillance undertaken by the US, the chapter outlines the conflict between surveillance, privacy, and information rights. The chapter concludes, first, by looking at the European Court’s decision in the Digital Rights case that Directive 2006/24/EC is invalid. It provided for the mass retention and disclosure to policing and security authorities of individuals’ online traffic data. Second, the chapter looks at the Court’s decision in the Google Spain case that, on the internet, an individual has a right to be forgotten.

2014 ◽  
Vol 73 (3) ◽  
pp. 471-474
Author(s):  
Kirsty Hughes

ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.


The internet is now the main way in which information is obtained. Chapter 13 considers the internet from a legal perspective, focusing on information and its disclosure. It seeks to provide a non-technical description of the operation of the internet as exemplified by the world wide web. It discusses the use of the internet by bodies subject to the Freedom of Information Act 2000 and other statutes and outlines some of the pitfalls of such use. For instance, a publication of information on a website operated from England may expose the publisher to civil or criminal liability in any country of the world on the basis of the law of those countries. The chapter explains the meaning of cookies, cloud computing, hackers, crackers and viruses. and discusses the problems of determining jurisdiction and seeking enforcement.


Colossus ◽  
2006 ◽  
Author(s):  
Tony Sale

In 1991, some colleagues and I started the campaign to save Bletchley Park from demolition by property developers. At this time I was working at the Science Museum in London restoring some early British computers. I believed it would be possible to rebuild Colossus, but nobody else believed me. In 1993, I gathered together all the information available. This amounted to no more than eight 1945 wartime photographs of Colossus (some of which are printed in this book), plus brief descriptions by Flowers, Coombs, and Chandler, and—crucially—circuit diagrams which some engineers had kept, quite illegally, as engineers always do! I spent nine months poring over the wartime photographs, using a sophisticated modern CAD system on my PC to recreate machine drawings of the racks. I found that, fortunately, sufficient wartime valves were still available, as were various pieces of Post Office equipment used in the original construction. In July 1994, His Royal Highness the Duke of Kent opened the Bletchley Park Museum and inaugurated the Colossus rebuild project. At that time I had not managed to obtain any sponsorship for the project, so my wife Margaret and I decided to put our own money into it, to get it started. We both felt that if the effort was not made immediately there would be nobody still alive to help us with memories of Colossus. Over the next few years various private sponsors came to our aid and some current and retired Post Office and radio engineers formed the team that helped me in the rebuild. In 1995, the American National Security Agency was forced by application of the Freedom of Information Act to release about 5000 Second World War documents into the US National Archive. A list of these documents was put onto the Internet. When I read it I was amazed to see titles like ‘The Cryptographic Attack on FISH’. I obtained copies of these documents and found that they were invaluable reports written by American servicemen seconded to Bletchley Park when America entered the war. I was also fortunate enough to be given access to the then still classified General Report on Tunny (parts of which are published for the first time in this book).


Chapter 14 deals with privacy, surveillance, and the right to know in the context of the internet. Edward Snowden’s disclosures of thousands of classified documents from the US National Security Agency served as a wake-up call. People are beginning to realize that government surveillance is widespread and intrusive, and that this intrusive power needs to be subject to legal safeguards. The chapter considers the legal constraints governing UK legislation and the impact of the decision in the Digital Rights Ireland case that EU Directive 2006/24/EC, which provided for the mass retention and disclosure of individuals’ online traffic data, is invalid. It considers the recent English cases and concludes by examining the framework which has been suggested for regulating the turbulent digital age in which we now live, drawing on David Anderson QC’s report ‘A Question of Trust’ and the European Court’s decision in the Google Spain case.


Author(s):  
Mark Elliott ◽  
Jason Varuhas

This chapter examines the content and scope of the duty to give reasons, suggesting that giving reasons for decisions should be treated as a central facet of procedural fairness in administrative law. It first differentiates the duty to give reasons from the duty to give notice, the possibility of inferring unreasonableness from an absence of reasons, the proportionality doctrine, and the duty of candour. It then considers why reasons are required and goes on to discuss the duty to give reasons at common law. It also describes statutory duties and other duties to give reasons, paying attention to the provisions of the Freedom of Information Act 2000 and Article 6 of the European Convention on Human Rights. Finally, it analyzes the question of whether a duty to give reasons has been discharged, and provides an overview of the remedial consequences of a breach of the duty to give reasons.


Author(s):  
Juan Fernando López Aguilar

Desde los primeros capítulos de la construcción europea con el Tratado de Roma (1957) que cumple 60 años, la jurisprudencia dictada por el Tribunal de Justicia ha sido determinante para la dimensión constitucional del ordenamiento comunitario. En una secuencia de decisiones históricas, el TJ ha afirmado su primacía, eficacia vinculante y su unidad garantizando su interpretación y aplicación uniforme, pero también, sobre todo, los derechos fundamentales dimanantes de las tradiciones constitucionales comunes como fuente del Derecho europeo (principios generales). Esta doctrina se consolida en Derecho positivo, al fin, con la entrada en vigor del Tratado de Lisboa (TL) en 2009, incorporando el TUE, el TFUE, y, relevantemente, la Carta de Derechos Fundamentales de la UE (CDFUE) con el «mismo valor jurídico que los Tratados» y, consiguientemente, parámetro de validez de todo el Derecho derivado, así como de enjuiciamiento de la compatibilidad de la legislación de los EE.MM con el Derecho europeo.La doctrina del TJUE sobre derechos fundamentales ha sido su proyección sobre la protección de datos en el marco de los derechos a la vida privada, a la privacidad frente a la transferencia electrónica de datos y al acceso a la tutela judicial de estos derechos (art. 7, 8 y 47 CDFUE). En ella conjuga los principios de reserva de ley (respetando su contenido esencial) y de proporcionalidad y necesidad de las medidas que les afecten. Pero, además, esta doctrina ha adquirido un impacto decisivo en la articulación jurídica de la relación transatlántica entre la UE y EEUU, confrontando los estándares de protección de datos a ambos lados del Atlántico e imponiendo garantías de un «nivel de protección adecuado» para los ciudadanos europeos. Este artículo examina el impacto de dos recientes sentencias relevantes del TJ —Asunto Digital Rights Ireland (2014) y Asunto Schrems (2015)— sobre el Derecho derivado (Directiva de Conservación de Datos de 2006, Directiva de Protección de Datos de 1995, y Decisión de «adecuación» de la Comisión Europea de 2000) y sobre instrumentos de Derecho internacional (Acuerdo Safe Harbour) entre la UE y EEUU. Impone, como consecuencia, no sólo una negociación que repare las deficiencias detectadas en ambas resoluciones sino una actualización del Derecho europeo (nuevo Data Protection Package en 2016) y una novedosa Ley federal de EEUU que por primera vez ofrece a los ciudadanos europeos acceso al sistema de recursos judiciales ante los tribunales estadounidenses en la defensa del derecho a la protección de datos (Judicial Redress Act, 2016).Right from the first very chapters of the European construction under the Treaty of Rome (1957), which turns 60 this year 2017, the jurisprudence by the Court of Justice has truly been decisive to shape the constitutional dimension of the European Community legal order. In a series of historical decisions, the CJEU has affirmed its primacy, its binding efficacy and unity, while guaranteeing its uniform interpretation and implementation. But it has also, above all, enshrined the fundamental rights resulting from the common constitutional traditions as a source of European Law (i.e general principles). This legal doctrine has been ultimately consolidated in positive Law, finally, with the entry into force of the Treaty of Lisbon (TL) in 2009, incorporating the TEU, the TFEU and, most notably, the Charter of Fundamental Rights of the EU (CFREU) with the «same legal value as the Treaties». Charter Fundamental Rights have turned to be, consequently, a parameter for examining the validity of secondary EU legislation, as well as for scrutinizing and reviewing the standard of compatibility of the national legislation of EU Member States with European law. The legal doctrine of the ECJ on fundamental rights has been particularly relevant in its impact on the data protection in the framework of the rights to privacy, privacy with regard to the electronic data transfer, and access to judicial protection of these rights (art. 7, 8 and 47 CFREU). It combines the principles of reservation of law (in due respect of its essential content) as well as proportionality and necessity for legislative measures that might affect them. But, moreover, this doctrine has had a decisive impact on the legal articulation of the so-called transatlantic partnership between the EU and the US, confronting data protection standards on both sides of the Atlantic and imposing guarantees of an «adequate level of protection» for all European citizens. This paper explores the impact of two recent relevant decisions by the ECJ — its rulings on Digital Rights Ireland case (2014) and on the Schrems case (2015) — upon the secondary EU legislation (Data Retention Directive of 2006, Data Protection Directive of 1995, and the «adequacy» Decision of the European Commission of 2000), as well as upon International Law instruments (Safe Harbour Agreement) between the EU and the US. It imposes, as a consequence, not only a negotiation that remedies the shortcomings detected in both decisions, but also a compelling updating of European law itself (new Data Protection Package in 2016) and a new US federal law, which, for the first time ever, provides European citizens with access to judicial remedies in U.S. Courts in defending their right to data protection (Judicial Redress Act, 2016).


Significance The ECJ ruling could add to potential disruptions to transatlantic commercial data flows arising from the EU's developing data protection regime that a study for the US Chamber of Commerce valued at 0.8-1.3% of EU GDP. The ruling weakens the United States in negotiations over the new EU regime, as well as over the Transatlantic Trade and Investment Partnership (TTIP). Impacts The ruling may bolster development of EU-based cloud facilities as EU users seek to avoid the risks of US-based data storage. This could reduce US firms' estimated 76% share of the EU cloud market. It would also lead to further fragmentation of the internet as a global resource.


Author(s):  
Matthew G. Jeweler

 When Congress enacted § 230 of the Communications Decency Act ("CDA")1 it changed the landscape of defamation law on the Internet. In the eleven years since Congress passed § 230, courts have interpreted it broadly, giving seemingly complete immunity to internet service providers ("ISPs") and website operators in third-party claims for defamation committed on the Internet.2 This essay argues that today, with the Internet being the dominant medium that it is, the CDA is outdated and unfair, and should be amended or repealed in favor of the common law framework for publisher liability in defamation.3


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