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Discovery and compulsion: how regulatory and litigation issues relating to intellectual property rights are challenging the fundamental right to the protection of personal data

Robin Callender Smith

Keywords: Digital Economy Act 2010; EU Charter of Fundamental Rights; EU accession to the ECHR; European Convention on Human Rights; Norwich Pharmacal; Phillips v Mulcaire; discovery; compelled interviews; Charter Article 8; Charter Article 7; Charter Article 11; ECHR Article 8; ECHR Article 10


Developing case law in relation to Norwich Pharmacal discovery litigation – coupled with the Supreme Court's Phillips v Mulcaire decision about compelled interviews – shows a clear and distinctive trend towards protecting a broad range of intellectual property rights that may be damaged or infringed by unauthorised downloading or hacking. Statutory provisions in the Digital Economy Act 2010 reinforce the protection being given to copyright owners.

However, issues in relation to an individual's personal data, clearly protected as an expressed stand-alone right by Article 8 of the EU's Charter of Fundamental Rights, 1 are only rarely being identified, articulated, weighed and given a separate identity in the proportionality balance conducted in the overt judicial reasoning that emerges from such litigation.

When the Charter Article 8 personal data protection issues are actually identified in these intellectual property discovery situations then they are being analysed only by reference to EHCR Article 8 privacy principles, which, it will be argued, ignores and detracts from a proper analysis and development of the essence of personal data enshrined in the EU's Charter.

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