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When organisations take cyber security seriously In examining the facts of the case, the court found in favour of the defendant, DSG, for the following reasons: - Claims for breach of confi dence and misuse of private information do not ‘…impose a data security duty on the holders of information (even if private or confi dential). Both are concerned with prohibiting actions by the holder of information which are inconsistent with the obligation of confi dence/privacy’. A claim for misuse of private information requires a ‘use’. T e court clarifi ed that this would require a positive action on the part of the defendant and, where this is not the case, such a claim cannot succeed; and - The claim for negligence was unsuccessful for two reasons, namely, there was neither a ‘need nor warrant to impose such a duty of care where the statutory duties under the DPA 1998 operate’ and where a claimant brings a cause of action in tort in order to recover damages for negligence, damage must have been suff ered by the claimant. However, it was deemed that ‘a state of anxiety produced by some negligent act or omission but falling short of a clinically recognisable psychiatric illness does not constitute damage suffi cient to complete a tortious cause of action’.


In recent years, there has been an increase in the number of claims being brought by data subjects like Mr Warren for distress and in many cases, these claimants seek to claim for their after-the-event insurance (ATE) premiums. As this is not recoverable in data protection claims but can be recovered in ‘privacy proceedings’, claimants have sought to circumvent


this diffi culty by re-framing their claims as claims for misuse of private information and breach of confi dence. In light of this important judgement, claimants


whose data has been compromised due to a cyber attack, will have to consider whether ATE insurance would be economically viable if the cost of such a premium is not recoverable, particularly given the cost of the claim is frequently greater than the damages awarded to the claimant should they be successful. Additionally, whether such a broadly based claim


should be brought at all will require some consideration as, in the words of the presiding Judge, Mr Justice Saini, it may merely be seen as an ‘unconvincing attempt to shoehorn the facts of the data breach into the tort of [Misuse of Private Information]’. Peter Kouwenberg is an Associate Solicitor


in the Corporate and Commercial department of Taylor Walton Solicitors and specialises in providing data protection advice. He also deals with all types of commercial contract including terms and conditions of business, distribution agreements and subcontracting.


For more information call Taylor Walton Solicitors on 01727 845245 or visit www.taylorwalton.com


ALL THINGS BUSINESS


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