Keeping control of personal information in the digital age: Efficacy and equivalence of tortious and GDPR/DPA remedial relief?

Brimblecombe, Fiona; Fenwick, Helen

Abstract

A global recognition of the threat to the protection of private information online, coming in particular from the big “tech” companies, is currently increasingly apparent. The same concerns, this article will argue, are driving significant legislative changes and recent and emerging jurisprudence determining the reach of both the tort of misuse of private information in England and Wales and data protection. To illustrate these points, this article identifies three key areas in which private information is under coming threat in the digital era, and the reforms in response being brought about legislatively and judicially to the contours of the applicable privacy-protective framework formed by both causes of action. In the first, the more traditional concerns of both the tort and data protection are engaged when private information is published without consent online, by private posters on privately-owned web-sites or on social media platforms, sometimes anonymously or from outside the jurisdiction, where the platform has merely acted as a passive host. In the second an intermediary enables any interested individual to access private information about an individual (and/or further threatened disclosures are likely) in breach of one or both causes of action, and the potential breaches are brought to its attention. In the third, browser-generated information is collected by an online intermediary without consent to disclose for commercial gain. The term “intermediary” will be used in a limited fashion in this article to cover social media platforms and search engines, and the focus will largely be on those owned by the global tech companies. As far as intermediaries are concerned, the second and third situations reach beyond the privacy concerns traditionally associated with mass media activity. The three reflect a spectrum, capturing passive engagement with the information to a more active engagement, including harvesting it for disclosure to third parties.

• Journal Article Type: Article
• Acceptance Date: Oct 27, 2021
• Online Publication Date: Jul 31, 2022
• Publication Date: Jul 31, 2022
• Deposit Date: Jan 17, 2022
• Publicly Available Date: Aug 1, 2023
• Journal: Law Quarterly Review
• Print ISSN: 0023-933X
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 138
• Pages: 456-480
• Public URL: https://uwe-repository.worktribe.com/output/8578762
• Publisher URL: https://uk.westlaw.com/WestlawUk/Journals/Publications/Law-Quarterly-Review?comp=wluk&transitionType=ListViewType&contextData=(sc.Default)&firstPage=true&contentType=UK-JOURNALS-PUBLICATION&querySubmissionGuid=i0ad604ad00000189b66f0bf743a67c82&startIndex=