On 15 April 2019, the Supreme Court granted supermarket chain Morrisons permission to appeal against the Court of Appeal ruling that it was vicariously liable for its employee’s misuse of data in the first successful UK class action for a data breach.
Permission was granted on all grounds of appeal and the Supreme Court will principally consider:
- whether the common law doctrine of vicarious liability is excluded in cases that engage the data protection legislation (i.e. where the primary tortfeasor’s actions amounted to a breach by the tortfeasor of his or her own obligations under the data protection legislation);
- if the doctrine is excluded in respect of claims brought by reference to the data protection legislation, whether it is equally excluded in respect of any related common law or equitable causes of action; and
- if the doctrine is not excluded, whether the Court of Appeal in any event erred when it decided to uphold the conclusion that Morrisons was vicariously liable in the circumstances of the case.
This latest twist in the Morrisons tale follows the Court of Appeal dismissing an appeal against the High Court’s decision that Morrisons was vicariously liable for its employee’s misuse of data in October 2018, despite: (i) Morrisons having done as much as it reasonably could to prevent the misuse; and (ii) the employee’s intention being to cause reputational or financial damage to Morrisons itself: Wm Morrisons Supermarkets Plc v Various Claimants  EWCA Civ 2339.
- here for our previous article on the Court of Appeal’s judgement and here for the Court of Appeal’s full judgement
- here for our summary of the High Court decision.
In anticipation of the GDPR, various guidance has been published by the Article 29 Working Party, the body of national EU data regulators.
Of most relevance in the cyber context is the guidance on personal data breach notifications; the Article 29 Working Party issued its initial guidance in October 2017 and published a final version of the guidelines (which remained mostly unchanged) in February 2018.
This guidance relates to the new requirement under the GDPR for all controllers to notify the appropriate data protection authority of a personal data breach, following a cyber attack for example. This will include providing the regulator with a significant amount of information about the breach and marks a change from the previous regime (under the Data Protection Act 1998) where notification to the ICO was not mandatory, although the ICO encouraged notification for serious breaches.
The key areas addressed by the guidance include further clarity on what constitutes awareness of a breach, when notification is and is not required in respect of examples of different types of breaches, when the clock starts running in relation to the 72 hour deadline and how to manage conflicting requirements of the GDPR and those of law enforcement authorities outside of the EU. For further information, a copy of the guidance can be found here.
On 1 December 2017, the High Court handed down its judgment on the UK’s first class action arising from a data breach (Various Claimants v Morrisons). The High Court allowed the claim and deemed Morrisons to be vicariously liable for the criminal actions of a former employee. Continue reading
The EU General Data Protection Regulation has finally been approved and published in the Official Journal. The countdown to its application date of 25 May 2018 has therefore begun.
The European Commission published its first draft of the EU General Data Protection Regulation (the “GDPR“) in January 2012, a comprehensive reform of current the existing EU regime. In April 2016, after over four years of debate, the final text of the GDPR was formally approved.