Privacy Together With Information Protection Inwards Universities: Recent Ecj Together With Ecthr Rulings

Professor Steve Peers, University of Essex

Privacy as well as information protection are unlike legal concepts, derived from unlike legal instruments, applied yesteryear unlike courts at European level. But the 2 concepts oftentimes overlap, as well as the relevant courts (the ECJ, interpreting the European Union information protection Directive as well as other relevant European Union laws, as well as the European Court of Human Rights, interpreting the right to privacy inwards the ECHR) sometimes brand reference to the other’s illustration constabulary as well as legal texts.

In the lastly month, each courtroom has given a ruling on the respective rights inwards the context of universities or other academic institutions. This is a expert chance to contrast the 2 courts’ unlike approaches inwards comparable cases, as well as to describe broader conclusions near the importance of these rights inwards the context of education.

Students as well as exam scripts: the Nowak case

In today’s judgment inwards Nowak, the ECJ ruled on the application of the EU’s electrical flow data protection Directive to exam scripts. The Directive volition live replaced yesteryear the General Data Protection Regulation – the ‘GDPR’ – from side yesteryear side May, but the outcome of this judgment would probable live the same nether the Regulation, specially since (as noted below) the Court makes around shout out of the GDPR already inwards this judgment. 

Mr Nowak is a trainee accountant inwards Republic of Ireland who failed a crucial exam iv times. He applied for all personal information held on him yesteryear the Institute of Chartered Accountants of Ireland, but it refused to mail him a re-create of the exam script. He complained to the Irish Gaelic information protection supervisory authority, but it ruled that exam scripts were non personal data; moreover his electrical charge was vexatious. He challenged the say-so through iv levels of Irish Gaelic courts, losing at every phase until the Supreme Court ruled that his electrical charge was inadmissible. But since that Court was uncertain as to whether exam scripts were personal data, it decided to inquire the Court of Justice to translate the relevant European Union law.

The ECJ began its ruling yesteryear applying the Directive’s Definition that ‘personal data’ is ‘any information’ relating to an identified or identifiable person. H5N1 pupil is either identified yesteryear shout out or necessarily identifiable via an attempt number. (It’s fortunate that the Court confirmed the latter point, since I’ve used it inwards classes for years as an illustration of when an private is ‘identifiable’).

According to the Court, it’s non relevant whether the examiner tin forcefulness out position the somebody at the fourth dimension of marking, as well as it’s possible for the way of identification to live dissever upward betwixt unlike people, because the administrative staff volition check the exam marks to each pupil later. This confirms the practise of anonymous marking – as good as many other aspects of life where registration numbers are used when processing information to save confidentiality.

But is the exam script (and the examiner’s comments on it) information relating to such a person? The Court reiterates that the Directive has a broad range inwards general, as well as and thence confirms that the notion of ‘any information’ has a broad range inwards particular: ‘not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, non exclusively objective but also subjective, inwards the cast of opinions or assessments, providing that it ‘relates’ to the information subject’.

Applying that definition, exam candidates’ answers are linked to them personally, since they demo (among other things) each candidate’s intellect, noesis as well as judgment. The utilisation of collecting the answers is to assess the candidate’s abilities as well as suitability, as well as the utilisation of the answers tin forcefulness out touching on the candidate’s rights or interests, for instance to access a profession. All this is as truthful if (as inwards this case) the exam is opened upward book.

More significantly for academics, comments on the exam are also personal data. They establish an thought relating to the candidate, inwards particular an evaluation of the candidate’s abilities, as well as lead maintain an effect upon that candidate. It doesn’t thing that these comments are also personal information relating to the examiner, since information tin forcefulness out establish personal information relating to to a greater extent than than i person.

Nor does it thing that the rules on access as well as rectification of the information apply, i time information is defined as ‘personal data’. The Court anxiously points out that rectification can’t hateful that an exam candidate tin forcefulness out modify wrong exam answers, since the right to rectify is linked to the utilisation why the information was collected – inwards this case, to assess the candidate’s abilities. What could live rectified is errors similar a missing covert sheet, or i candidate’s exam script existence confused amongst around other candidate’s script. Moreover, exam sheets mightiness lead maintain to live destroyed i time they are no longer relevant, as a outcome of information protection law.

Furthermore the Court usefully points out that the candidate does non lead maintain a right to the exam questions (!) – presumably pregnant access inwards advance of the exam – since those questions as such are non personal information inwards abide by of the candidate.

The Court’s concluding – as well as rattling vague – indicate is that restrictions tin forcefulness out live placed upon access to data, both nether the Directive as well as (under to a greater extent than circumstances) the GDPR. Frankly, it’s non clear what indicate the judges are trying to brand here, since this observation is non as well as thence applied to the facts of the case.

Comments

The practical outcome of the judgment is that markers of scripts volition lead maintain to live careful what they write on them. Peevishly sniping “I’m sick of this pupil already” would live a bad idea; thence would angrily scribbling “f*@! the Vice Chancellor!”. Rather the comments should relate to a fair assessment of the content of the script.

While around academics volition live understandably concerned near their workload, there’s no argue why information protection constabulary should impact on how detailed such comments should live – or indeed if at that topographic point are whatever comments at all. That’s an number for universities as well as other educational institutions to determine.  Having worked inwards a legal surroundings where exam scripts as well as comments are available to students for many years, inwards my sense at to the lowest degree at that topographic point are no particular problems.

Data protection constabulary judgments are oftentimes criticised for a lack of mutual sense, but there’s around sign of that uncommon commodity here: the Court rules out the obvious absurdities of students correcting an exam newspaper after it has been handed back, or having a right to advance noesis of the exam questions. It does non shout out around of the broader educational policy arguments for its judgment though: the accountability of markers to students, as well as the potential usefulness of comments on exam scripts as feedback for students, which is maybe what the frustrated Mr Nowak was seeking here. Of course, the latter indicate is dependent on how detailed the comments are: the judgment does non dominion out markers but writing the infamous phrase "Good as far as it goes".

Privacy inwards lecture theatres: the Antovic as well as Mirkovic v Montenegro case

So professors must live accountable to students inwards the context of exam marking; but to what extent tin forcefulness out their privacy live affected yesteryear attempts to brand them accountable to academy management? In this case, the Dean of the mathematics schoolhouse inwards a academy decided to get-go taping academy lectures, for the twin reasons of protecting academy holding as well as ‘surveillance of teaching’.

It’s non known if professors responded yesteryear writing “f*@! the Dean!” on exam scripts. Rather to a greater extent than pragmatically, around of them complained to the information protection supervisory authority, which ruled, after initial hesitation, that the academy had breached information protection law. (Comparing this to the Nowak case, it’s striking that the watchdog based exterior the European Union barked louder than the watchdog based within it).

The professors as well as thence challenged the academy inwards courtroom for breaching their right to privacy as regards the catamenia when the video surveillance was applied. They lost inwards the national court, thence challenged the nation earlier the European Court of Human Rights (ECtHR) instead.

The ECtHR here), such an expectation commonly applied to workplace spaces.

That meant at that topographic point was an interference amongst privacy rights, which could live justified nether Article 8(2) ECHR if the interference was inwards accordance amongst the constabulary as well as had a specified legitimate aim. Here the interference was non inwards accordance amongst the law, since the constabulary did non lay downward the possibility for surveillance of teaching as well as laid a status (which was non met here) that surveillance could live used for surveillance of holding exclusively if no other way was possible. So at that topographic point was no necessitate to assess whether a legitimate aim existed.

For 2 concurring judges, the decision that at that topographic point was an interference amongst the right to privacy was correct, but should lead maintain been reached on other grounds. Rather than focus on the surveillance taking house inwards the workplace, the primal number should lead maintain been the activities existence carried out. Lectures are an occasion to speak over ideas as well as interact amongst students, as well as formed role of the facial expression of academic freedom. (Note that the applicants did non struggle a breach of Article 10 ECHR, setting out the liberty of expression).

For the dissenting judges, at that topographic point was no interference amongst the right to privacy at all. The illustration law, inwards their view, exclusively protected a reasonable expectation of privacy inwards around circumstances, which did non apply hither inwards calorie-free of certainly safeguards: at that topographic point was no audiotape; the professors were non identifiable due to blurring of faces; as well as at that topographic point was limited farther utilisation of the tapes.

Comments

The ECtHR did non speak over European Union information protection law, but European Union rules would probable lead maintain led to a comparable termination (adapted to dats protection law), for however around other unlike laid of reasons. In its judgment inwards Rynes (discussed here), the ECJ ruled that the information protection Directive applies to CCTV recordings unless they exclusively tape activities within a dwelling house (the ‘household exception’ inwards the Directive). That would propose that recordings of lecture theatres are covered yesteryear the Directive. The dissenting judges’ analysis of whether the professors were ‘identifiable’ seems, amongst respect, superficial inwards calorie-free of the Nowak judgment: was at that topographic point actually no way to deduce, inwards calorie-free of fourth dimension stamps for instance, who would lead maintain been lecturing at that time?

Of the 2 lines of reasoning inwards the judgment supporting the application of the right to privacy, the concurring judges’ analysis is to a greater extent than convincing. ‘Surveillance of teaching’ is a notion that excites authoritarians inwards general, as well as difficult Brexiteers inwards particular. Given that the exceptions to Article 8 ECHR tin forcefulness out apply exclusively if necessary inwards a ‘democratic society’, it makes sense to accept concern human relationship specifically of the importance of academic liberty when assessing whether the right to privacy has been interfered amongst – as well as to a greater extent than broadly of a worrying shift toward illiberal republic inwards as good many countries across Europe. It would also lead maintain been useful to nation that ‘surveillance of teaching’ is non a legitimate the world for interference amongst the right to privacy.

Regardless of the safeguards inwards place, the proclamation of an intention to house teaching nether surveillance has a chilling effect on professors as well as students alike. While academy administration has a legitimate involvement inwards ensuring that professors plow upward to teach, as well as do thence competently, at that topographic point are many other routes to this terminate – pupil electrical charge or feedback procedures, for instance. Indeed, judgments similar Nowak, as I noted already, assist to ensure academics’ accountability to students. It’s unfortunate that this judgment missed the chance to straight confirm the importance of academic liberty as i of the pillars of republic – rejecting the ever-louder screeching of those denouncing those amongst unlike opinions as ‘enemies of the people’.

Barnard & Peers: chapter 9

JHA4: chapter II:7

Photo credit: ZDnet

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