Information law: area of practice (barristers)

Freedom of information and data privacy require analytical thinkers and excellent communicators, says Rupert Paines from 11KBW.

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Data protection and privacy law is different from other areas.

Information law barristers will typically work on cases that concern freedom of information, data protection, human rights, confidentiality and privacy.

What is information law?

The Freedom of Information Act 2000 and related legislation gives the public a right to obtain any information held by public bodies, subject to limited exceptions. The requester can be anyone – an interested individual, a journalist or a campaign group, for example. If the information is withheld, the requester can complain to the Information Commissioner’s Office or the relevant regulator. Both parties (the requester and the public authority) can appeal to a tribunal. Appeals usually involve oral evidence, sometimes given in ‘closed’ sessions where disputed information is considered without the requester present, and legal submissions.

Data protection and privacy law is different from other areas. It is aimed at ensuring that individuals’ personal information is stored and used fairly by third parties (such as employers, public bodies, online companies and suchlike), and is not illegitimately disclosed.

Information law and the GDPR

There are important changes to data protection law in the pipeline. The EU General Data Protection Regulation (GDPR) was adopted in April 2016 and will apply from 25 May 2018. It has created a great deal of interest and concern in the business world, as the requirements imposed are more stringent and the potential sanctions much heavier. Despite Brexit (discussed later on this page), the government will implement the GDPR and has published a data protection bill to do so.

Information law cases that students should be aware of

Information law is fast moving and headline grabbing. Recent cases in freedom of information have included the ‘black spider memos’ litigation on whether Prince Charles’ letters should be released to the public ( R (Evans) v. Attorney General ) and the European Court of Human Rights’ decision that access to state-held information is a human right ( Magyar Helsinki Bizottság v. Hungary ).

Recent data protection and privacy cases have ranged from considering whether Google could be required to remove links to websites mentioning individuals who exercised their ‘right to be forgotten’ (the famous Google Spain decision); the question of whether social media sites are liable for information posted on their sites by users ( CG v. Facebook ); and the possible use of data access rights to try to obtain information on the use of private investigators by one party to a multi-million pound dispute between property developers ( Holyoake v. Candy & CPC Group Ltd ). The increasing prevalence of new technology and information-centred businesses, and the implementation of the GDPR, are likely to cause novel issues and disputes to arise.

Barristers in this area tend also to have a general public and/or commercial law practice, although a few specialise almost entirely in information law. You may spend about a quarter of your time in court and hearings can take place across the country. Compared to some other areas of law the work/life balance is fairly sensible, although there will be the occasional urgent case.

Aspiring information law barristers should be aware of the Freedom of Information Act 2000, Data Protection Act 1998, Environmental Information Regulations 2004, Regulation of Investigatory Powers Act 2000 and Human Rights Act 1998, as well as the common law torts of breach of confidence and misuse of private information.

What can you expect as a pupil in information law?

Pupils don’t often have to work long evenings or weekends, although this depends on their supervisor’s practice and the culture at their chambers. They will accompany their pupil supervisor to court and will assist in drafting pleadings, witness statements and advice. There may be the opportunity to take on cases in their second six.

Types of law practised by information law barristers

  • Breach of statutory duty
  • Common law torts

Useful traits for information law barristers

  • An analytical brain – this is essential for grappling with the legislation.
  • An interest in how companies and public bodies control information and the ways in which personal information are protected, stored and used to affect people’s lives.

RUPERT PAINES is a barrister at 11KBW. He was called to the Bar in 2012 and has degrees in theology and law from the University of Oxford.

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