Labour’s suspension or expulsion of members – apparently almost exclusively pro-Corbyn members – during the party’s leadership contests is well known. The ‘purge’, as it was known, was largely based on the use of social media comments as grounds for the disciplinary action, but was flawed in its use of innocuous or irrelevant comments.
The vast majority of suspensions were lifted after the elections, although some still remain in place and significant numbers remain expelled.
The purge also breached data protection laws, leading to a reprimand by the ICO (Information Commissioner’s Office) and new guidance issued by the party’s General Secretary Iain McNicol to Labour staff and officers advising them that they could not trawl members’ social media for disciplinary purposes.
Now the latest word from Labour insiders is that HQ believes it has found a way to continue to use members’ social media against them – but the party’s functionaries will not disclose how.
The SKWAWKBOX contacted the ICO for information on how Labour might think it could bypass the ICO’s earlier judgment but the only formal response was:
The ICO expects all organisations processing people’s personal information to comply with the Data Protection Act and to be fair and transparent about how and why they intend to do so. Anybody who is not happy about how their personal data is handled by an organisation can raise a concern with the ICO.
However, sources close to the ICO flagged both how Labour might still choose to try to use social media information against members and the key flaw in the plan.
Labour may try to claim “legitimate interests” to access and use members’ social media feeds against them for disciplinary purposes. According to the ICO’s guidance,
The Data Protection Act recognises that you may have legitimate reasons for processing personal data that the other conditions for processing do not specifically deal with. The “legitimate interests” condition is intended to permit such processing, provided you meet certain requirements.
The first requirement is that you must need to process the information for the purposes of your legitimate interests or for those of a third party to whom you disclose it.
The second requirement, once the first has been established, is that these interests must be balanced against the interests of the individual(s) concerned. The “legitimate interests” condition will not be met if the processing is unwarranted because of its prejudicial effect on the rights and freedoms, or legitimate interests, of the individual. Your legitimate interests do not need to be in harmony with those of the individual for the condition to be met. However, where there is a serious mismatch between competing interests, the individual’s legitimate interests will come first.
So Labour could try to claim the use of social media data met the legitimate interest test, especially if it claimed to be responding to a specific complaint rather than ‘trawling’. However, it would be hard-pressed to argue that a clear ‘mismatch’ of interests did not result in the interests of the individual taking precedence, when the data use might result in the suspension of expulsion of the ‘data subject’.
An even bigger obstacle, however, is inherent in the mere fact that Labour HQ is refusing to tell members how it intends to use their data. DPA experts flagged a lack of transparency to this blog as the largest probable obstacle for Labour HQ if it chooses to pursue the use of social media feeds for disciplinaries.
The ICO website stresses the importance of transparency if data is to be processed lawfully:
Being transparent and providing accessible information to individuals about how you will use their personal data is a key element of the Data Protection Act 1998 (DPA) and the EU General Data Protection Regulation (GDPR). The most common way to provide this information is in a privacy notice.
Labour updated its privacy notice (archived in its current form here) immediately after the SKWAWKBOX revealed the ICO’s judgment on its data processing and McNicol’s guidance – however, there is no detail in the privacy notice about how social media data will be used.
In fact, social media does not receive a single mention in the privacy notice.
This means that Labour’s failure to provide information on how it will use members’ social media information is likely a fatal flaw in any plan to ‘process’ social media feeds for disciplinary purposes. So far, the party has not provided any such guidance, let alone clear, transparent, easily accessible information.
This – to date – is the only statement Labour has been willing to make on the subject:
The Labour Party’s rules and procedures are compliant with all areas of UK law, including the Data Protection Act.
Even the most generous interpretation of that statement could not include the terms ‘transparent’ or ‘easily accessible’, let alone be considered to advise ‘how’.
There are other serious weaknesses in any renewed attempt by the Labour bureaucracy to weaponise social media against its members – weaknesses not related to the DPA – but these will be covered in a separate article.
However, while Labour’s actions may be unlawful, it does appear that the party machine still intends to proceed unless defeated in legal action, so members should exercise caution with the content of their social media, as right-leaning HQ staff have shown a willingness to go beyond any sensible definition of ‘abuse’ in the things they single out as reasons for disciplinary action.
Labour has been asked for comment on the lack of transparency in its handling of members’ social media feeds, but has so far failed to respond.
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