Information Note on the Court’s case-law No. 93

January 2007

Smith v. the United Kingdom (dec.) - 39658/05

Decision 4.1.2007 [Section IV]

Article 8

Article 8-1

Respect for private life

Non-disclosure to applicant of notes kept by his bank: inadmissible

The applicant was the managing director and controlling shareholder of a company involved in development of industrial units. An oral agreement was reached between the applicant and a bank representative stating that the bank would take over funding the development and that the applicant's personal and company borrowings would be secured on the development and by a mortgage on the applicant's home. They agreed that the short-term bridging loan would be replaced by long-term mortgage finance once two units had been let and two had been sold. The bank later denied the existence of this oral agreement, refusing to provide long term financing and giving notice that they were calling in their loans. This led to protracted litigation where the applicant was unsuccessful in his claims against Lloyds, which gained possession of his home, making him bankrupt. The applicant traced the representative who disclosed the existence of contemporaneous notes of the meeting. The applicant made application for access to the notes under the Data Protection Act claiming personal data concerning him was either processed or part of a filing system within the meaning of that Act. The high court refused to order the disclosure of the notes, while accepting there were documents which mentioned the applicant within the bundles. The judge rejected arguments seeking to bring the notes within the Act considering that they did not concern personal data about the applicant. Mere mention of an individual's name in a document held by a data controller did not mean that the document contained personal data. The documents held by the bank were not personal to the applicant. The Court of Appeal rejected his appeal application, finding that domestic and European legislation did not cover information held in unstructured files as opposed to a processing or filing system. Arguments that the data were personal to the applicant were rejected, noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data.

The Court's role is not to assess whether domestic courts have correctly interpreted domestic or European legislation on data protection. No public authority had interfered with the applicant's private life by collection or storage of data. It was not decisive that the bank had stored this information in the files concerning transactions with the company rather than in a file concerning the applicant himself. There may be circumstances where information relevant to the private life of an applicant may be contained in files which are primarily concerned with another individual or entity, although in those circumstances countervailing issues may well arise relevant to the protection of the privacy of the third party. The information allegedly in the files concerned a business transaction, the terms of which the applicant claimed to be fully aware. It was his desire to obtain substantiation of these terms with a view to further legal proceedings that motivated his application for access to the data held by the bank, i.e. an oblique application for discovery of documentary evidence. This was not a case where the applicant sought access to files holding information about his identity or personal history, whether with a view to correcting any errors in those records or preventing misuse of personal information or to uncovering information with formative implications for his or her personality. Nor was the information in the documents obtained through any measure invasive of the applicant's privacy or held on a data base which is in current use or involves the possibility of release of personal information to others. The Court was not persuaded that the authorities had failed in any positive obligation to protect the applicant's right to respect for his private life within the meaning of Article 8(1): manifestly ill-founded .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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