Display of computer data on screen not 'use'

LAW REPORT v 13 February 1996
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Regina v Brown; House of Lords (Lord Goff of Chieveley, Lord Griffiths, Lord Jauncey of Tullichettle, Lord Browne- Wilkinson and Lord Hoffmann); 8 February 1996

The retrieval of personal data from a computer database by displaying it on the screen without doing any further act with the information retrieved does not constitute "use" of such data within section 5 of the Data Protection Act 1984.

The House of Lords (Lord Griffiths and Lord Jauncey dissenting) dismissed an appeal by the prosecution from the Court of Appeal's decision ([1994] QB 547) quashing the defendant's convictions under section 5 of the Data Protection Act 1984.

The defendant, formerly a police constable, was entitled to make use of personal data held in the police national computer for the registered purpose of policing. On two occasions he used the computer to find out the names of the registered keepers of motor vehicles which might belong to debtors of clients of a debt collection agency run by his friend.

In the first case the vehicle did not reveal any personal data. The second vehicle did reveal personal data but there was no evidence that any person made any use of the information obtained. The defendant was convicted of attempting to use and of using personal data for a purpose other than the registered purpose.

The Court of Appeal allowed his appeal on the ground it was necessary to do something to the data and not merely to access it before data could be "used" within the statute. The prosecution argued that since data was defined as information recorded in computer-readable form or binary code, it could be "used" only when the computer was operated, because once operated so that information from the database was displayed on the screen or printed out the information was not data.

Timothy Langdale QC and Tom Kark (CPS) for the prosecution; Brian Higgs QC and Robin Johnson (Durlings) for the defendant.

Lord Goff said that the defendant caused information which constituted the data to be displayed on the screen, read and observed the information so displayed, but took no other action. The question was whether by so acting he used the data, contrary to section 5(2)(b).

At first sight the retrieval of information would not of itself be "using" the information so retrieved. It would simply be transferring the information into a different form. The definition of data as information in a computer- readable form did not mean that such information was only data while so recorded. It meant that, if information was so recorded, it became data for the purposes of the Act; and if such information from that source was thereafter made use of it was used within the meaning of the Act.

If the prosecution's construction were correct, a police officer who idly operated the police computer, retrieving personal data on to the screen without putting it to any use, would be guilty of a criminal offence; whereas another police officer who learned from a colleague of certain information constituting personal data stored in the police computer and then used the information for business purposes would not. That could not be the statutory intention.

If the words were given their natural and ordinary meaning, the defendant would have been charged with an attempt. However there was no question of upholding the conviction of an attempt. Such a conviction was only possible if the jury, properly directed on the law, had concluded that the accused had gone beyond mere acts of preparation and embarked on the commission of the offence.

Lord Griffiths, dissenting, said that, whilst he rejected the prosecution's construction, "use" should be given a broad construction that forbade the illegitimate display of personal data, covering not only applying the information in the data for an illegitimate purpose but also the invasion of privacy involved in the illegitimate display of the information.

Lord Jauncey agreed with Lord Griffiths.

Lord Browne-Wilkinson agreed with Lord Hoffmann.

Lord Hoffmann, agreeing with Lord Goff, said that the scheme of the Act did not permit the phrase "use personal data" to be construed as including retrieval.

The operation performed by the defendant fell within the definition of "processing". It could not also constitute "using". The Act treated processing differently from using.

Ying Hui Tan, Barrister