Tort – cearta.ie

Closing off the Warren of Negligence Claims for Data Breaches

1 February, 20248 February, 2024

| Cyberlaw, Cyberlaw, Data Protection, Digital Rights, Privacy, Privacy, Tort

I have just published “Closing off the Warren of Negligence Claims for Data Breaches” in Damian Clifford, Kwan Ho Lau & Jeannie Marie Paterson (editors) Data and Private Law (Hart Studies in Private Law, Bloomsbury, 2023) chapter 10; pp161-174 (available via SSRN). Here is the abstract:

Large databases of personal data are increasingly vulnerable to hacks. Arising out of the biggest data breach in the United Kingdom’s history, the claimant in Warren v DSG Retail Ltd [2021] EWHC 2168 (QB) (30 July 2021) sought damages for distress for breach of data protection legislation, misuse of private information, and breach of a duty of care in negligence. Saini J dismissed the negligence claim because there is neither need nor warrant to impose such a duty of care where there exists a bespoke statutory regime. But this is an incoherent policy, inconsistently applied. Moreover, it ought not to operate at all in cases where the defendant has voluntarily assumed responsibility towards the claimant. Nevertheless, after Warren, the tort of negligence provides no incentive for the controllers of large databases to protect them.

The cover of the book is above, right. It is very elegant. And this is one time where you really can judge the book by its cover.…

It’s good to TalkTalk – Part 2: negligence claims for data breaches

18 July, 202225 July, 2022

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| Data Protection, Privacy, Privacy, Tort

1. Introduction

Two recent cases demonstrate two very different privacy issues arising out data breaches suffered by the telecommunications company TalkTalk in 2014 and 2015. Smith v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB) (27 May 2022) concerned claims for damages for both breaches; whilst Sterritt v Telegraph Media Group Ltd [2022] NIQB 43 (09 June 2022) concerned the privacy of one of the hackers involved in the second breach. In my previous post, I looked at the limits of claims for misuse of private information for both breaches in Smith. In this post, I want to look at Smith (again) and at Sterritt, to consider the limits of a claim in negligence in such cases.

2. Negligence claims in Smith

The main problem in Smith is that TalkTalk did not take steps to secure the data involved in the 2014 breach and the 2015 hack. This sounds like a failure to take reasonable care. But a negligence claim in such circumstances was not pleaded, as it was probably precluded by authority.

In Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, [1996] EWCA Civ 1322 (22 March 1996), the plaintiff saw a car which had hit and killed a police officer, and provided that information to the police.…

The legal perils of hot coffee – from the Circuit Civil Court in Dublin to the Court of Justice of the European Union in Luxembourg

20 January, 202012 July, 2022

| 2 Comments

| Tort

Without my first cup of coffee, I don’t function in the mornings. So, it’s not a surprise that some recent headlines about coffee caught my eye: Woman who was scalded when coffee spilled in her lap at drive-throughr awarded €30k damages (The Independent); Woman awarded €30,000 after takeaway coffee spill causes burns (The Irish Times); Woman (29) awarded €30k after she was scalded by coffee spill at McDonald’s drive-thru (The Journal.ie); Unable to have ‘intimate relations’ for 8 months: Woman, 29, receives €30k award after coffee spill (The Examiner); €30,000 for woman who could not have sex after McDonald’s scald horror (The Herald). All of the reports begin in the same way:

A 29-year-old woman, whose thighs and genitals were scalded when coffee was spilled in her lap at a McDonald’s drive-through takeaway in Clondalkin, Co Dublin, has been awarded €30,000 damages in the Circuit Civil Court.

Ciara Corboy, of Oatfield Avenue, Clondalkin, told Judge Francis Comerford that in November 2017 while being handed a large Americano at the drive-through restaurant at The Mill Shopping Centre, Clondalkin, a lid that had not been properly secured to the cup had come off causing her to be scalded in her thighs, groin and private parts.

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