outsourcing GP appointments to India: is this legal under DPA?

[Nicholas Bohm]

On 20/01/2011 11:09, Peter Mitchell wrote:
> Nicholas Bohm wrote  on 19-01-11 18:17:
>> The question is, who does the exporting?  And the answer, now - I think
>> - as then, is that it is the person who does the acts which cause the
>> data to be exported.  That may indeed be the person who, from outside
>> the UK, sends the request to the UK website which makes the data
>> readable abroad.
>
> In the recent Sportradar case, the High Court Chancery Division
> decided that "a company is responsible for 'making available'
> internet-hosted material in the country where its host server is
> based, not in the country where the material is read or used".
> http://www.bailii.org/ew/cases/EWHC/Ch/2010/2911.html
>
> This seems relevant to our "exporting" controversy. But I do not know
> to what extent judgments of a court that deals with one particular
> area of the law are regarded as binding on courts that deal with other
> areas. Probably it is decided on a case by case basis, the main
> desideratum being whatever best suits the authorities. 
> Re outsourcing medical data to India; it has been done routinely for a
> decade at least, and for material that is far more sensitive than
> appointments. Several specialist companies have been set up to do it,
> and AFAIK are flourishing. 

An interesting case. 

The judge said at 74:  "I have come to the conclusion that the better
view is that the act of making available to the public by online
transmission is committed and committed only where the transmission
takes place. It is true that the placing of data on a server in one
state can make the data available to the public of another state but
that does not mean that the party who has made the data available has
committed the act of making available by transmission in the State of
reception. I consider that the better construction of the provisions is
that the act only occurs in the state of transmission."

This is a case about copyright and database right, and the meaning of an
expression used in that legislative context.  It has no binding effect
in relation to legislation on other subjects, even if the same
expression were used (which isn't always the case anyway).  It can be
referred to in argument, of course, but its effectiveness would depend
on how good the analogy was between the two sets of circumstances.  It
is interesting that it comes to the same conclusion as I suggested
applies to exports, but in no way decisive.

Nicholas
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