FAQ on UK law

[Francis Davey]

2013/5/7 Clive D.W. Feather <clive at davros.org>

>
> The European Court, in case C-101/01 ("Lindqvist") decided that
>
>     there is no 'transfer [of data] to a third country' within the meaning
>     of Article 25 of Directive 95/46 where an individual in a Member State
>     loads personal data onto an internet page which is stored with his
>     hosting provider which is established in that State or in another
>     Member State, thereby making those data accessible to anyone who
>     connects to the internet, including people in a third country.
>
> In other words, putting material on a web site is not exporting it as far
> as the Data Protection Act is concerned. Whether this would be accepted as
> precedence by a UK court on an export control matter is another question.


I'm sceptical as to whether Lindqvist has any relevance. The case concerned
whether there had been a "transfer" of personal data by Bodil Lindqvist
within the meaning of  Article 25 of the data protection directive. I can
immediately think of two reasons why it does not help us:

[1] It concerns two different readings "transfer" v "export" that appear in
very different legal frameworks. I suspect that interpretation of one does
not help with the other.

[2] A close reading of Lindqvist suggests it is not as helpful as one might
think at first sight. The CJEU seems to think that because she did not
herself carry out the transfer - it was done by the web hosting service she
was using - that was OK. I suspect a court (mindful that Bodil Lindqvist
faced criminal charges for blogging that someone she knew at church had a
sprained ankle inter alia) wanted to make sure the web was legally possible
by making a much nicer distinction than most of us would be happy to live
with.

There's a little bit of help in the underlying EU export control
legislation. Article 2(b) of Council Regulation 1334/2000 says:

"export" shall mean:

...

(iii) transmission of software or technology by electronic media, fax or
telephone to a destination outside the Community; this applies to oral
transmission of technology by telephone only where the technology is
contained in a document the relevant part of which is read out over the
telephone, or is described over the telephone in such a way as to achieve
substantially the same result;

So, it would appear that hosting export controlled software would be an
export if it were downloaded outside the jurisdiction. I cannot see how
offering support could be.

But, I'm not a specialist software export lawyer. Although this is roughly
my field, I haven't researched the point, so this is just how it appears to
me off the top of my head.

-- 
Francis Davey
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