A bunch of Tw*ts

The Englishman who wades into Scottish politics on either side, especially if he lives in England, is probably taking a huge risk of being disagreed with vehemently, no matter what he says. Nevertheless, the explosion of interest into the so-called ‘Clypegate‘ list has a Data Protection angle that I cannot resist.

To summarise, it seems that the Scottish Labour Party have assembled a list of supporters of the Scottish National Party who have said things on Twitter and Facebook that the Scottish Labour Party do not like. The list – inevitably tagged a dossier – has been passed to the tabloids to stir up some kind of frenzy about the so-called ‘Cybernats’. Some of the statements are fairly strong, but I doubt they are worse than anything said in the average pub conversation about politicians. I’m certain every term applied to Gordon Brown and Donald Dewar has been said of Alex Salmond by Labour supporters. As someone who voted Labour in the recent election, I can think of a few more constructive things that the smouldering remnants of Labour in Scotland could be doing with their time, but this is what they decided to do, so we are where we are.

Now, if you were hoping for anything more in the way of politics, you’re going to be disappointed. From here on in, it’s ANORAK TIME!

The Data Protection Act has many requirements for the processing of data, but the chief hurdle is the first DP principle, which requires three things. The processing of personal data must be fair, lawful, and conditions must be met. Regular readers will know that consent is not required, as there are alternatives to consent in the lists of conditions. Let’s consider the three elements in turn;

FAIR: fair has two meanings. The use of data has to be fair in the dictionary sense of the word and it also has to be fair in the DP sense, which means the Data Controller (Labour) has to tell the subject (the SNP tweeter) how their data will be used unless an exemption applies. Many organisations believe that because personal data is in the public domain, it is fair game. The Information Commissioner’s own guidance on personal data online stated in 2010 that this was not the case, and we have a very recent example (Samaritans Radar, which also focused on tweets) where the ICO stated that tweets were personal data (depending on their content), and so DP applied.

Labour fail on both counts. Gathering together tweets and providing them to a newspaper to name and shame the individuals is not fair in my opinion. But more importantly, Labour did not tell the subjects that their data would be used in this way. Clearly members of the Scottish Labour Party will look at what is being tweeted; they may analyse and try to counteract it. If you don’t like the idea of people you don’t like reading your tweets, go private or stop tweeting. However, the conscious selection and specific analysis of a person’s tweets is processing personal data as is passing it to a newspaper, and none of the DP exemptions allows Labour to do this in secret.

The use of the data was not fair.

LAWFUL: this is a tricky one where I expect I will get little agreement, especially from people who might read this hoping to see Labour eviscerated. DP requires that data processing should not breach other relevant laws e.g. Human Rights privacy or confidentiality. I do not believe that Labour’s use of the data was unlawful – Carina Trimingham’s Facebook account was pruriently raided by the Daily Mail so that they could make cheap jibes about her, but she still lost her Human Rights privacy case. Twitter and Facebook are not private places unless you lock your account. Get used to that.

CONDITIONS: DP requires that one of a prescribed set of conditions is met to justify the use of personal data, and one from a second list if the data is defined as ‘sensitive’. A person’s political opinions are sensitive data, so this means that Scottish Labour needed not one condition, but two. The tricky part is usually the sensitive data condition, but as it happens, I don’t think Labour have a problem here. One of the conditions for processing sensitive personal data is that the sensitive data has “been made public as a result of steps deliberately taken by the data subject‘. I think this box is ticked – the political opinions were tweeted out into a public forum by the subject.

But that’s not the problem. The problem is that a condition is also required from the first set, and here Labour are stuffed. They don’t have consent, a contract, a legal power or obligation, and they are not protecting anyone’s vital interests. The only condition left is ‘legitimate interests‘, where they have to claim that their legitimate interest in monitoring and publicising rude tweetersis not ‘unwarranted’ because of ‘prejudice to the rights and freedoms or legitimate interests of the data subject’. I am not remotely convinced that monitoring of ordinary folk – even if they are supporters or members of a party – is a legitimate interest in this context.

I have registered to vote in the Labour leadership elections, and had to declare that I support the aims and values of the Labour Party. That was not an easy declaration to make, but I definitely don’t support any other party and I never have. If Labour wanted to find out whether I was in fact a Conservative or SNP supporter pretending to be Labour, and looked at my Twitter account to find out, I believe that would be a legitimate interest. They would still have a problem with fairness, and would have to tell me that this was going to happen (they didn’t).

I don’t believe the two situations are comparable however. But even if I did, even if Scottish Labour monitored their opponents legitimately, it’s impossible to argue that legitimate monitoring is not undermined by passing the data to journalists, especially as journalists are (under Section 32) virtually exempt from the Data Protection Act. If the monitoring was done to identify genuine abuse and report it to Twitter or Facebook, I believe that would be legitimate and would not be unwarranted. But this all seems to be for PR and political points scoring. I cannot read this as legitimate interests with no unwarranted harm.

There are other questions – does the dossier breach the DP requirement for accuracy for example? But we don’t need to get into that. Two significant breaches of the first principle are sufficient to say that Labour has breached the Act. That’s it.

The only remaining question is what should happen now. I believe Scottish Labour should stop in their tracks, grow up and apologise. If that doesn’t happen (and even if it does), this is a gift to their opponents that will undoubtedly result in complaints to the ICO. Regular readers will know that I am always sceptical that the ICO will stray outside their comfort zone of security fines, but it is open to them to issue either an enforcement notice stopping Labour from doing this, or (very unlikely) issue a penalty. It is worth noting that by the time the ICO quietly disposed of complaints about the Samaritans, the charity had stopped their Radar project and may never restart it. Political parties are rarely so intelligent, and if the ICO are faced with an intransigent Labour response, not admitting that they have done wrong, anything is possible. Much as I would like to see Labour pick themselves up and offer something more optimistic, it seems that they have instead blundered into another bruising debacle of their own design.

Comments

  1. I’ll not argue with your analysis of this, but I will give other aspects to this, and let you and others bounce them around.

    1) Twitter’s TOS – https://twitter.com/tos?lang=en

    See attached image – http://www.statgeek.co.uk/wp-content/uploads/2015/06/tos.png
    “You are what you tweet.”

    2) Misrepresentation – Is the data being used in a manner to represent any or all of the people in the ‘list’ in an (unfair) unfavourable light?

    If person ‘x’ was not a member of the SNP at the time of the Tweet, are they being misrepresented in this context?

    If person ‘x’ was making a statement of personal opinion, does that opinion automatically make them part of a group of ‘others’ that may or may not be open to criticism.

    If a person believes all prison meals are of poor quality, and 100,000 prisoners (convicted criminals) agree, is that person (possibly a social worker, or even a chef) placed in a category of trust akin to convicted criminals?

    In short, it is a badly thought out thing to produce, and I’m sure the media will love it, and will take the legal risks for the paper sales and clicks generated.

    In fairness, we should request that the author of the ‘list’ declare interests or monies gained for said data. Data sharing for profit (data selling) without permission might be another thing entirely.

    • There is definitely a big question about the ethics of this, as well as the data quality. I’m confining myself to the basic question, which is are they legally allowed to do it. I’m certain they’re not.

    • ElaineS says:

      That’s very true about “If person ‘x’ was not a member of the SNP at the time of the Tweet, are they being misrepresented in this context?” I can imagine there are many like myself who were Labour for Indy and very angry at what our party had become and could very well have called them “traitors” or swore at them. Since changing to SNP the profile would show that on old tweets but very likely it was a Labour for Indy profile at time of tweet. We were treated shoddily by Scottish Labour, we were accused of being an SNP front as well as “traitors” when all we wanted was to see return of grassroots Labour which we believed would happen with Indy. SNP could very well be wrongly attached to tweets made by non SNP members at the time of tweet.

  2. More importantly Scottish Labour is targeting the electorate that did not vote for them and this is an attack on democracy. Scottish Labour is dead in Scotland and will not resurrect itself attacking the electorate for not voting their way and if they are handing fascist list to fascist papers add my name as a Scot who won’t be bullied.

    • I hope you’ll understand if I say that I hope that one day Scottish Labour returns from the dead. However, you are absolutely right that this is completely the wrong way to do it, and will only prolong their time in the wilderness.

      • I’m anarchist so not loyal to any one party but my stepdad was miner and I walked to soup kitchen everyday so I completely understand, saying that I like to break anarchist rules too and vote, can’t conform to nonconformity 😉

  3. Jim Fraser says:

    You’re right, you would think Scottish Labour would have better things to do at the moment. Specifically, you’d think Blair McDougall would know better than to run this sort of petty nonsense, especially when it is legally dubious. I suspect he has been lulled in to a false sense of security by the fact that the Scottish media (not to mention the Mail and the Telegraph) will pretty much print his press releases verbatim. It keeps the SNP Bad kettle boiling, I suppose at least in some people’s minds. But not in those of the Scottish electorate, I would say. Thanks for writing on the subject. And I wouldn’t worry about the English thing, insightful and illuminating thought is much prized here in the frozen north, no matter where it comes from.

    • Thanks very much for your comments. I am generally amazed by the petty things that politicians do when far, far bigger problems are right in front of them!

  4. As an SNP member & one of the persons on the list, i will declare myself & the alleged abusive tweets to my party & take advice from them, to proceed down the route you have outlined is an option dependent on my parties advice/reaction…

  5. Rumbling Clint says:

    Labour Party? Scotland? I thought the principle was when you’re in a hole stop digging. The Labour Party? I remember that …

  6. ElaineS says:

    Great piece! Thanks for that, I was Labour for 40 years and I do not recognise one iota of anything that reminds me of the party I was once proud to be a member of. Trouble is both Labour and the biased media ignored far worse abuse that we in the Yes campaign as well as both First Ministers endured for over 2 years and we’re lucky a bot picked up the abusive ones so it was there for all to see……unfortunately ignored by mainstream parties and media. http://www.twitter.com/britnatabusebot on twitter here and around the world folk will swear and be rude to opposition politicians/opinionated people so Scottish Labour acting like MI5 on swear words when folk are being murdered around the world by IS really makes them a very, petty joke of a party and Scottish Labour as they are should be disbanded and started from scratch, with genuine socialist people who are not eaten away with obsessive hatred for a party who they think stole Scotland. I endured it as an activist but it sickened me eventually when all they could do was bitch and plot to discredit SNP. I’m very happy with SNP and I feel very at home in this warm and welcome party.

  7. Charles says:

    To say that I am bitter at not being able to see my Name on this ‘Anti Nat League of Scotia’ File, is to understate my Feelings! All those Endless Hours of Vile Abuse totally Ignored makes me feel entirely disenfranchised!

    ‘I am now, and have ever been, a Cybernat of the First Waters, and you Blacklist me at your Peril!

  8. Tim,

    Clearly this blog suggests you’re a specialist in the field of DP/FOI. For that reason, I’m bemused by your position here.

    I feel you have – for whatever reason – got hold of completely the wrong end of the stick. And as a result, misjudged the various issues in question. I’ll try to explain how.

    Legally, you make the implications appear quite complex. I would suggest most issues here are somewhat simpler than that.

    If I understand anything of Data Protection, its essential purpose is to guard against the holding, and worse, dissemination, of confidential information (or subjective views) that might be prejudicial to the interests and/or welfare of the party thus compromised.

    Bluntly, I don’t see how the actions you describe Scottish Labour Party as intending to take breach any of the above.

    Twitter sometimes witnesses a voluntary public divulgence by a “tweeter” of information about her/himself. Fair enough. If on the other hand someone else tweets (or otherwise divulges) private or confidential information concerning that same person, I would certainly see that as potentially an offence.

    However: Twitter is an open public announcement medium – perhaps the best-known, and most-used online PA medium in this part of the world. If a user deliberately tweets spiteful, abusive, and/or inflammatory posts against others – particularly when, individually or in tandem with others, such utterances incline to defame, threaten or incite hatred against another person or organisation – then I cannot see how exposing such misuse of the open, public medium – in the tweeter’s/tweeters’ original words – constitutes any sort of infringement against DP laws.

    As I see it, the party that might more obviously merit legal scrutiny in such a case is the person who takes it into her/his head to be vitriolic, inflammatory and/or threatening in the first place. (A party who – experience suggests – when confronted with what s/he has said and done, then all too often plays the wronged party, the target, the victim, in the matter.)

    As far as I can see, the only personal data divulged about the tweeters in the case discussed is that they volunteered (or blazened) “I’m SNP/I’ve joined the SNP”. I don’t see how further publicising that open broadcast – as evidence of “parti pris”, and when taken together with further content (see below) by the same people, as evidence further of a serious and widespread problem within the SNP memebership that that party has not properly tackled – is in any sense seriously interpretable as compromising any confidential data of the tweeters concerned.

    However, a look at the content of such very public outpourings shows an appalling collection of inflammatory hate language, and worse. You downplay the force of such discourse, likening this to “average pub conversation about politicians”. I would put it to you that once you view the intensity of language in its message context, this transgresses any fair definition of “vulgar abuse”.

    If you do what such tweeters have done, and combine: (a) degrading invective (labelling opponents as (demeaned) female anatomical parts, and/or a contemptuous term literally designating “filth on the top of water”, and/or misogynistically pillorying women with a term properly describing a female dog, often intensifying this with “bitter”, “twisted” or worse) … if you intensify that already grim level of political invective with: (b) I would say, a defamatory public branding of political opponents as “traitor (to Scotland)” (that term hammered out repeatedly) and/or “quisling”, “sold out your country”, “not even human”, “cancer is too good for you”, “hang all these traitors”, etc., then I would ask you if you consider this to be an acceptable level of public discourse for any party’s membership.

    In some cases at least, such statements appear to me potentially to fall within the definitions under Scottish Law of (a.) Breach of the Peace (e.g. the sections “threatening & abusive behaviour”, “threatening communications”) and (b.) Defamation (“a broadcast, statement or publication which lowers a person in the estimation of a right-thinking member of the public”). Above and beyond those specific legal questions, I feel such attacks are also likely to cause substantial distress & alarm to targeted individuals, and moreover serve to poison the public sphere of discussion and debate, and tend to bring the political process into disrepute. I am sure you will also be aware of the formulation: “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” – and its force.

    And yet you give every appearance of considering those “expressing themselves” in such ways as if they were (potentially) illegally wronged, their data somehow illicitly compromised. And you conclude with bold certainty (amid other weighty pronouncements) that “Labour has breached the Act” by bringing such widespread abuse to light.

    I have to say, I find your reversal of the offender-victim relation in this context breathtaking.

    You have every right to your personal view there are “a few more constructive things … Scottish Labour could be doing with their time” than – I would argue – attempting to expose all too widespread vitriolic, inflammatory and defamatory abuse: or as you surprisingly trivialise it, “things the Scottish Labour doesn’t like”. Implying, I suppose, that Labour should focus on developing effective and fair policies that appeal to folk, and attempting to rebuild a base of electoral support for something other than the SNP’s evident populism (by means, it must seem, fair or otherwise).

    The later is self-evidently true. But forgive me, but I don’t see how it’s an Either/Or. The compilation of such cases is not exactly time-consuming: they are legion, and thick in cyberspace. And surely the point of opposing the attitudes, behaviour, and a lamentable method of politics that the SNP has failed to address, among its “arm’s length” self-avowed members, is urgently to bring to full public attention patterns of behaviour that tend to degrade, defame and seek to cow individuals, and, I would contend further, threaten public order.

    When this is not a question merely of isolated incidents, but widespread behaviour among party members, this takes on the dimensions of a collective endeavour agitating on behalf of the SNP in cyberspace – a medium of debate whose importance should not be underestimated, as I fear you do – with demagogic “mobbing” and a regrettable manipulation of normal and acceptable standards of debate: again, this demeans not only individually targeted opponents, but the public shere and the political process itself.

    It appears that Scottish Labour has attempted to air serious concern about such patterns of behaviour that, I agree, are a matter of urgent public importance, in an entirely legitimate response: and I am taken aback that you effectively deny this.

    I was intrigued by your initial comment about “an Englishman wading into Scottish politics”. You justify this seemingly audacious foray by claiming an “explosion of interest (in) the list” raised “a Data Protection angle that I cannot resist”.

    Particularly when, as I have tried to explain, I feel you have seriously mistaken the case, its rights and wrongs, this does not to me convincingly explain why you nevertheless reached out beyond your usual areas of confident opinion, and confidently proposed a set of – as I see it – extremely questionable premises and conclusions (e.g. “Labour has breached the Act”).

    Hence I have to ask whether this bizarre blog entry was requested or commissioned by anyone sympathetic to the SNP, and, it would seem, protective of its members’ worst behaviour.

    I hope you will be so kind as to allay any such doubt.

    • Thanks for your comment.

      Firstly, I wrote this blog because I wanted to. Nobody asked me to write it, suggested I write it or commissioned me to write it. I have no connection with the SNP or its supporters. Indeed, I have voted Labour in every election since I was eligible to vote (i.e. since 1992), and I am currently a registered supporter of the party for the purposes of voting for the new leader. Nevertheless, I don’t let that blind me to Labour’s flaws as an organisation. The fact that you can only interpret my comments as evidence that I am an SNP stooge says more about you than it does about me. It would be nice if you would withdraw the allegation, but I won’t hold my breath.

      Secondly, you say “if I understand anything about Data Protection”, but then spend more than a few words demonstrating that you don’t. As the blog said, it is not just my position that comments made on Twitter are personal data and thus captured by the DPA. It is the Information Commissioner’s position, both in its published online code of practice (2010) and in its recent handling of the Samaritans Radar case. Personal data as defined by the Act does not need to be private and it does not need to be confidential. Whether or not Labour intended to breach the Act is irrelevant to the question of whether they did.

      Finally, there is a debate to be had about the tone and content of political discourse in Scotland. Some SNP supporters may have crossed the line and committed offences as you suggest. There would have been no breach of Data Protection had Scottish Labour collated information for the purposes of criminal or civil legal action, there being exemptions in the Act that would have facilitated such a process. They could have chosen not to identify the commenters and tried to start a debate about the content, which would have been a much smaller issue. They took neither option. The fact is, as I pointed out in the blog, Labour’s purpose was to give the details to a tabloid. That is why I said it was a breach. Political parties are not exempt from Data Protection.

      I express my views confidently because I know what I am talking about. I’d be keen to have my views challenged by someone who does understand Data Protection, who could point out to me how I have got the legal issues wrong. You have not done that. So unless you have something better than your political opinions dressed up as your understanding of the Data Protection issues, we might be wasting each other’s time here.

Trackbacks

  1. […] According to Tim Turner (you should read his full post), you can complain on the grounds that the use of your data was not “fair” – […]

  2. […] I digress. Failure to comply with PECR and the DPA is rife across the political spectrum and I think it’s strongly arguable that lack of enforcement action by […]

  3. […] Not because someone compiling a list of publicly-available tweets and Twitter accounts has done anything in breach of the Data Protection Act. […]

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