Data protection trouble for the online gossip mill

The European Court of Justice has issued a warning to all those who publish news on the internet in its judgment in criminal proceedings against Lindqvist (Case C-101/01), unreported, 6 November, 2003.

A Swedish lay preacher, Mrs Lindqvist, fell foul of the data protection laws when she set up a website onto which she fed mild local church gossip.

The site identified some of her parishioners and listed their jobs, hobbies, family circumstances and even the fact that one parishioner had injured her foot.

On receiving complaints, she closed the site immediately but was then charged with breaching EU data protection law.

The Swedish district court convicted Mrs Lindqvist and her conviction was upheld by the European Court of Justice.

The European data protection directive, which must be implemented into national law by all EU countries, regulates the use of personal data processed automatically or contained in “an appropriate filing system”.

The directive does not apply to “purely personal or household activity”, but the European Court of Justice held that this exemption applied only to activities carried out purely in the course of private or family life. Because material placed on the web is available to an indefinite number of people, Mrs Lindqvist’s activities were held to be outside this sphere.

EU data protection rules are implemented into UK law by the Data Protection Act 1998, under which the misuse of personal data rarely gives rise to criminal liability.

Civil remedies, for example, an injunction and compensation, may be available for improper use of personal data.

Perhaps the most important feature of the UK’s act is that it reverses the burden of proof.

Previously a claimant had to show that an invasion of privacy was unwarranted; now he merely has to show that personal data has been used, leaving the perpetrator with the burden of justifying his use of the information.

The European Court of Justice’s strict interpretation of Swedish law should act as a cautionary tale for all those who put data of a personal nature on their websites.

Ruth Moss is a lawyer in the technology, media and communications department at Lovells.

Ruth Moss

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