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Beyts v Trump International Golf Club Scotland Ltd : Caught Short on Data Protection and Privacy

Document Cited authorities 11 Cited in Related
Vincent
Pages411-417
Author
DOI10.3366/elr.2017.0437
Published date01 September 2017
Date01 September 2017
INTRODUCTION

Small claims1 in the sheriff court do not often fire the imagination of the national press, and Ms Beyts herself seems previously to have figured in the local newspapers only to the extent of small print on charity swims2 and an award-winning photograph of nacreous clouds over rural Aberdeenshire.3 In April this year the defenders' presidential associations in Beyts v Trump International Golf Club Scotland Ltd 4 bucked this trend, sending Ms Beyts' name down the newswires from Catterline to Yekaterinburg. A regrettable omission from that press extravaganza, however, was proper discussion of the intriguing legal issues which this case raised.

 THE FACTS

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. The first intimation that the pursuer received of this6 was at 10pm that evening when two police officers arrived at her home and charged her with a contravention of section 47 of the Civic Government (Scotland) Act 1982, which provides that “any person who urinates…in such circumstances as to cause, or to be likely to cause, annoyance to any other person shall be guilty of an offence”. 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”). As narrated by Sheriff Donald Corke, the injury that she had suffered was constituted by distress about: (i) the circumstances of being charged with a criminal offence; (ii) the fact that men had watched her urinating; and (iii) the fact of being photographed in this act.

 APPLICATION OF <a href="https://vlex.co.uk/vid/data-protection-act-1998-808114001">THE 1998 ACT</a>

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. Reference was made also to the Court of Appeal decision in Vidal-Hall v Google Inc,7 which clarified that compensation could be awarded in terms of section 13 where the individual had suffered distress only, even if there was no other type of loss. However, the pursuer did not look beyond this to 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...

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