In April 2017, small claims case Beyts v Trump International Golf Club Scotland Ltd created a press extravaganza, however, as Elspeth Reid points out in her article for Edinburgh Law Review there was no proper discussion of the intriguing legal issues surrounding privacy and data protection, which this case raised. Below, is an extract from the article appearing in Volume 21 Issue 3.
Whether or not Ms Beyts would subscribe to the accolade of “environment activist” awarded to her by The Guardian,5 she was one of the group of individuals in the local community who had opposed the defenders’ golf resort development on the Aberdeenshire coast at Menie. On the day in question she and a friend had used a public right of access across the golf course on their way to the beach, pausing, however, to take a photograph of a flagpole that was the subject of a disputed planning application. In doing so they were noticed by a Trump employee, who, along with two colleagues (all men), drove on to the course to observe the pursuer and her friend. Meanwhile the pursuer, who was affected by a medical condition, felt an urgent need to answer a call of nature and she found for this purpose a spot in the sand dunes which she believed was secluded. She was unaware that 230 metres away she was being watched by the three Trump employees, one of whom used his mobile phone to take a picture of her urinating, and thereafter reported the incident to the police.
Criminal proceedings were never brought, and instead the pursuer raised an action against the defenders based upon the defenders’ breach of the Data Protection Act 1998 (the “1998 Act”).
Application of the 1998 Act
It was uncontroversial that the digital photograph taken by the Trump employee was personal data and that the defenders were the data controller in terms of section 1 of the 1998 Act. The defenders had not, however, registered as such, or more specifically, notified the Information Commissioner of their data processing, as required by section 17 of the 1998 Act, which section 21 states to be an offence. Ms Beyts therefore invoked section 13 which allows for damages to be awarded to individuals who suffer distress due to contravention of the 1998 Act.
The pursuer did not cite a breach of any of the eight data protection principles to which data controllers are bound to adhere as stated in section 4 and listed in Part I of Schedule 1 to the 1998 Act. The sheriff noted: “Her solicitor advocate was specific in stating that were it not for the failure to register, we would not have been here considering the case”.8 Thus the fatal gap in the pursuer’s argument as pled was the absence of a causal connection between the failure to register and the undoubtedly real distress which she experienced during this episode. The sheriff therefore had no option but to dismiss the claim.
It is not obvious why the pursuer did not invoke a breach of the data protection principles.
Breach of Privacy?
Several of the many newspaper accounts seized upon this case as dealing with “breach of privacy”, but in fact breach of privacy as a basis for delictual liability was neither pled nor discussed. This was perhaps a missed opportunity.
Did the pursuer suffer relevant harm as a consequence of the defender infringing a protected interest?
The wrong suffered by Ms Beyts could not properly be characterised as misuse of private information, since the offending photograph was deleted almost immediately, when the police told the phone’s owner that it was not needed as evidence of the suspected criminal offence. Moreover, the distress that she suffered related not to any use of the photograph, but to the fact of being photographed, and the knowledge that three men had watched her urinate. In the famous scheme of privacy torts pioneered by the US scholar William Prosser, this was not disclosure of private facts but “intrusion”, as perpetrated by intruding upon “the plaintiff’s seclusion”.19
There is persuasive authority for acknowledging privacy of the person as deserving of protection. It seems that in England the future availability of a remedy for intrusions of the type experienced by Ms Beyts will depend upon finding an appropriate “peg” on which to hang it. For the Scots, on the other hand, the primary concern is not the remedy but the right.