Striking the Right Balance between Privacy and Public Protection

[Dave Bird]

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In article <20n+LaCIsSu9EAoo@highwayman.com>, Richard Clayton
<richard@highwayman.com> writes:
>>I'm pretty sure that the consensus of the members of this list is that
>>after-the-event reporting to the data subject is a necessary part of any
>>regulatory regime that could be compatible with normal expectations of
>>civil liberty.

 I second that.  
>
>An interesting question about defamation arises (or if not defamation
>then something rather similar).
>
>Should the notification say:
>
>    "Dear Mr Brown, I wish to report to you that during the course of an
>    investigation into whether Mr John Q Smith was engaging in
>    paedophile activity we found it necessary and proportionate to do a
>    reverse lookup on the phone number 0208 123 4578 which we found to
>    be your number. The investigation is now complete, no charges are to
>    be brought, and so we are now letting you know about this minor
>    intrusion into your privacy.
>    Lots of Love, The Met"
>
>If it doesn't name "Mr Smith" or mention the type of investigation then
>will this notice actually serve to provide proper oversight ?

 Indeed there are problems with some sorts of disclosure
 when it concerns alleged offences, by third parties,
 where there was not a (prosecution or...) conviction.  



 There shouldn't usually be a problem of notice to a person 
 who was himself subject to criminal investigation:

 Dear Mr Bloggs,

 A criminal complaint was investigated against you for [OFFENSE].  
 As you know you were questioned but not charged / prosecuted
 and cleared / prosecuted and convicted.

 [UNLESS CONVICTED] we believe we had sufficient probable cause
 to investigate whether you committed such an offence, and that
 the investigations we carried out were proper and proportionate.
 If you disagree you can complain to...........................

 In the course of doing so we carried out the following 
 surveillance: trace of all phone-numbers called between
 [DATE1] and [DATE2].  Lots of Love, the Met.


 There is no real problem if a third party was prosecuted and
 convicted and "we had sufficient probable cause to investigate
 this alleged offence and the investigations we made were
 necessary, proportionate, and relevant, including investigation
 of his communications with you" similarly.  


 If he was prosecuted and found not guilty, circulation of such
 a notice might convey "but we knew he dunnit and we'll get 'im
 next time", which is indeed defamatory.  

 Even worse if no charges were ever laid.  


 This might actually mean the notice couldn't say why, but
 merely "A criminal complaint was investigated against someone
 you were in contact with.  Either no charges were made or
 the prosecution failed.  We believe we had sufficient probable
 cause to investigate this alleged offence and that the investigations 
 we made were necessary, proportionate, and relevant, including 
 investigation of his communications to you."

 It would still reveal what surveillance was done, and when.


 For the rest it might have to say "if you wish to know more
 about this including the offender's name, then we will forward
 your request to him but he is not forced to answer you."

 This still allows the person who is outraged by a false
 investigation to get together with his associates they
 investigated so as to make a joint complaint.  But if
 the suspect wants his own privacy then you get no further
 with that aspect of it.  


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