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Lord Williams of Mostyn moved Amendment No. 45:

Page 7, line 34, leave out from ("manner") to ("likely") and insert--
("(a) is causing or is").

The noble Lord said: Amendments Nos. 45 and 49, which are government amendments, are grouped with Amendments Nos. 46, 47, 48, 51 and 55. It may be for the Committee's convenience, if I speak to Amendments Nos. 45 and 49. To save the noble Viscount, I can dispose of Amendments Nos. 51 and 55 immediately. The noble Viscount indicates that there may be deficiencies in the Scottish context. There may well be, but I have not been able to consider the matter. If it is helpful and saves the noble Viscount indicating his area of concern--and I do not know whether it is right--I will undertake to consider the suggested changes. If change is necessary, we shall bring forward appropriate amendments in due time.

I shall therefore speak to Amendments Nos. 45 and 49, which are government amendments. These are partly technical adjustments to the test which has to be

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satisfied by a data subject so that he has the right to prevent certain processing of data about him taking place. The test, basically, is that he has to show, with reasons, that the processing of the data, generally or for a particular purpose or in a particular manner, is not warranted as causing, or likely to cause, substantial harm. The amendments make it clear that it is the harm itself--the substantial damage or substantial distress--which must be unwarranted. We have therefore tried to make the test more clearly dependent on the likely effects of the processing, and thus easier to apply.

In bringing forward these amendments, we took carefully into account representations from the media, to whom, as always, I am most grateful for their constructive approach as to the desirability of clarifying this aspect. I beg to move.

Viscount Astor: I am grateful to the noble Lord for saying that he will consider my Amendments Nos. 51 and 55. I was looking forward to the Solicitor-General explaining to me why I would be wrong in saying why distress is not a term of art in Scots law, but that can no doubt wait for another occasion.

Perhaps the Minister could comment briefly on Amendment No. 47 which leaves out "substantial" and inserts "significant". I was concerned that the threshold was really too high and that the harm should only be significant, rather than substantial. Could the noble Lord comment briefly on that?

Lord Williams of Mostyn: There ought to be a reasonably high threshold for the use of the remedy, because we are stopping potentially perfectly lawful processing at what is otherwise too low a level. The directive itself looks to a high threshold, "compelling legitimate grounds" I believe is the phrase. The noble Viscount wants to substitute "significant" for "substantial", but we think substantial is what we are looking to. That is the term used elsewhere in the Bill, so it has the virtue of consistency and of putting into effect domestically what the directive requires.

Viscount Astor: I am grateful for the noble Lord's explanation.

Lord Norton: I wish to speak on Amendment No. 46. This is a probing amendment. Clause 9 puts into effect Article 14 of the directive, of which the Minister has pointed out the most important words are "compelling legitimate grounds". It does not seem to me that these words easily translate into substantial damage or substantial distress. Substantial damage is a concept which is easy enough to understand. It is not just material measurable damage; it is serious damage. Is it right to process data that will materially damage an individual but not substantially damage? I suspect an individual may well consider that he has compelling legitimate grounds when no damage is caused--a personal detail of a person's health records for instance. Compelling legitimate grounds, it seems to me, in essence is an emotional measure that could result in damage. How can substantial distress be measured? It is subjective.

23 Feb 1998 : Column CWH47

In the days of the reforms of the noble and learned Lord, Lord Woolf, it must be better to bring more certainty to the law rather than to include subjective grounds which have to be left to the courts to decide. In this probing amendment I am asking whether the Minister would consider a more certain objective test, to the benefit of the data subjects and the data controllers.

Lord Williams of Mostyn: I am grateful for that careful review, which the noble Lord has put forward. If the amendment were accepted it would substitute what is a less rigorous test of material damage. I have travelled part of this ground in my response to the invitation of the noble Viscount when he wished our policy answered, as it were.

We do not feel it is right to make the change the noble Lord, Lord Norton, suggests. After all, the new regime introduces a completely new concept into data protection law. It bears repetition, I hope, that it gives individuals the right to object to processing which is in all respects lawful, and if there is to be a block on that the test should be set high, and that is why we have set it high. It is not to be overlooked perhaps that in the same section of the Bill one finds the word "unwarranted". We believe that our phrase, "substantial damage or substantial distress", is capable of being adjudicated on by the appropriate body. Material damage sets the hurdle quite low, and when one is dealing with interference with an activity which is otherwise lawful one needs to have a higher threshold simply than material damage.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Strabolgi): I must inform the Committee that if Amendment No. 46 is agreed to I cannot call Amendments Nos. 47 or 48.

[Amendments Nos. 46 to 48 not moved.]

Lord Williams of Mostyn moved Amendment No. 49:

Page 7, line 35, at end insert ("and
(b) that damage or distress is or would be unwarranted").

The noble Lord said: I have already spoken to this. I beg to move.

On Question, amendment agreed to.

Lord Norton moved Amendment No. 50:

Page 7, line 40, at end insert--
("( ) The data controller must within the prescribed period respond in writing to any person who has given a notice under subsection (1), indicating--
(a) whether he intends to comply with the notice, or any part of it; and
(b) if he intends not to comply with the notice, or any part of it, his reasons for so doing.
( ) In this section "the prescribed period" has the same meaning as in section 7.").

The noble Lord said: I also speak in respect of Amendment No. 52. In Clause 9 there is no requirement for the data processor to respond to the notice in writing from the data subject. An unscrupulous data processor

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could just ignore matters and the data subject would have the problem of not knowing whether the request for the non-processing of data had been successful, or worse, the data subject would not know the grounds upon which his request had been rejected when the processing took place. This amendment would force the data controller to respond to the data processor's letter within the prescribed period as defined in the Bill, setting out whether the data controller agrees to the request, and, if not, on what reasons the processing is taking place. It provides the link between the data processor and the controller from a dialogue before the matter has to be taken to the courts. The Data Protection Registrar has welcomed this amendment. I beg to move.

Lord Williams of Mostyn: I also speak to Amendments Nos. 50 and 52 in the name of the noble Lord. I agree that the consequence of his amendments would be to put upon data controllers the responsibility of making a particular reply.

I sympathise with the thinking behind these amendments. Notices under Clauses 9 and 10 are not on all fours of course with subject access requests under Clause 7, because the only satisfactory way to comply with the subject access request is to reply to it in writing, either enclosing the information requested specifying what further details are needed or explaining why the information requested cannot be supplied.

I agree with what the noble Lord has said. A notice objecting to processing can be complied with simply by the data controller stopping the processing. It is not on this scheme essential to inform the individual in writing that this has been done. Because it is not essential that the data controller should write to the individual to explain the extent to which he does not intend to comply and why he has taken that decision, there is a query about the virtue of the scheme. Therefore, I believe there is some force in what the noble Lord has said and I undertake to consider it further.

Lord Norton: I am grateful to the Minister for his very positive response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 9, as amended, agreed to.

Clause 10 [Right to prevent processing for purposes of direct marketing]:

[Amendment No. 52 not moved.]

Baroness Young of Scone moved Amendment No. 53:

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