(iv) whether damages should be awarded for loss of the right to control of
personal and confidential information.
It is common ground that I can and should take into account, in assessing
damages for distress, awards made for psychiatric or psychological injury in
personal injury cases to ensure that any award is not out of kilter with them.
12
As to the first contentious issue, I am satisfied that TLU and TLV can sue for
both the common law and statutory torts. The family returns process had, as its
object, the return of families with children under 18 who no longer had leave to
be in the United Kingdom to their country of origin. The data collected related
to that process. It was collected under the name of a lead applicant, in this case
TLT but in others the mother of the children, but it applied to all of them. The
fact that they had claimed asylum with TLT was just as much private and
confidential information about them as it was about him. Their identity could
readily be inferred from his name, as could the general area in which, like him,
they lived in the United Kingdom. Further, the Home Office held personal data
similar to that held about TLT.
13
"Personal data" is defined in s.1(1) of the 1998 Act:
"'personal data' means data which relate to a living individual who can
be identified-(a) from those data, or
(b) from those data and other information which is in the possession
of, or is likely to come into the possession of, the data controller
…".
"Processing" is also defined in the same subsection:
"'processing', in relation to information or data, means obtaining,
recording or holding the information or data or carrying out any
operation or set of operations on the information or data, including-…
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission,
dissemination or otherwise making available …".
14
This data was "used" and therefore processed by transferring some of it -- the
fact that TLT had family members, including children who had claimed asylum
and had reached a particular stage in the family returns process -- to the
spreadsheet. It was then further processed by the disclosure produced by the
posting of the spreadsheet on the Home Office website. Anyone with
knowledge of the family, by reference to TLT's name, would be able to
BEVERLEY F. NUNNERY & CO.
OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
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