DEFINING ‘PERSONAL DATA’ IN E-SOCIAL SCIENCE

Abstract

The concept of ‘personal data’ under UK and European Union (EU) data protection law is important for e-social science researchers who handle ‘personal data’, particularly in cross-border projects. The lack of harmonization across different EU Member States is problematic. Uncertainties and complexities associated with the ‘personal data’ definition, particularly in the UK, have resulted in practical difficulties, such as in relation to anonymization. This article discusses those issues and identifies areas where clarification of the law is needed.

Keywords:

• ICTs
• law
• surveillance/privacy

Notes

For example, the Economic and Social Research Council Research Ethics Framework Policy Guidelines states that as a ‘Minimum Requirement … Legal and data requirements must be met’ and subsequently expand this in ‘detailed guidance on requirements and procedures’ including four pages on all legal and data requirements and one page on the Data Protection Act 1998. While that discussion raises some important issues, a high degree of simplification is inevitable.

For example, ESDS Qualidata, regarding an FAQ on ‘Are there any restrictions on the use of data?’ states: ‘Users should not attempt to use the data to deliberately compromise the confidentiality of individuals or households and are required to abide by the current Data Protection Act’. This is not particularly enlightening. Clause 8 of its End User Licence provides slightly more detail regarding confidentiality, though not data protection.

‘Relevant filing system’ means ‘any set of information relating to individuals to the extent that, although the information is not processed … automatically… the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible’. (DPA s. 1(1).)

The ICO in 2008 promulgated a single Model Publication Scheme for public authorities, with ‘definition documents’ for different sectors such as universities and (separately) colleges of further education. An example of a UK university's publication scheme is at http://www.admin.ox.ac.uk/foi/publication/

Mr Durant attempted to take his case to the House of Lords, the UK's ultimate appeal court (now called the Supreme Court), but failed when his application for special leave to appeal outside of the normal time limits was rejected on 30 November 2005. His claim against the UK before the European Court of Human Rights for breach of the European Convention of Human Rights was ruled inadmissible.

For fuller discussion and specific examples see Millard and Church (2007b). Regarding FOIA, the ICO has issued related guidance in ‘The exemption for personal data’ (ICO 2011).

Since January 2010 called the First-tier Tribunal (Information Rights), with expanded remit.

A decision apparently suggesting a broader interpretation of ‘personal data’ is R v Rooney (2006). There, the Court of Appeal, Criminal Division, held that a reference to the town or village where particular individuals lived constituted ‘information contained in personal data’ for the purposes of the offence of ‘Unlawful obtaining etc of personal data’ in s. 55 DPA. However, it seems there was little discussion of the point and, in particular, it does not seem the court was briefed on the Durant case.

In Lindqvist, for example, the ECJ considered various questions by a Swedish Court of Appeal (the Göta hovrätt) regarding publication of information on a web site in Sweden. Among other findings, the Court ruled that ‘the act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constitutes the processing of personal data wholly or partly by automatic means’ within the meaning of Article 3 (1) of Directive 95/46’. Lindqvist, para. 27.

The judges chose not to re-consider the Durant interpretation of ‘relating to’.