Personal data in divorce

Last weekend The Telegraph reported what appears to be an upward trend in marriages breaking down not only as a result of infidelity, but often as a result of infidelity with more than one person.  In our blog of 3 October, we discussed the potential perils of committing to writing in the form of text messages and social media posts comments or correspondence which might then be the subject of regret if they were to re-appear again in the context of a divorce action.  The Telegraph’s article however focuses on a related point which is that technology has, in of itself, made it much easier for spouses to be unfaithful, and also much easier for them to be caught.

The article gives examples including people forgetting to close or properly delete e-mails and sending text messages which are not then deleted.  On 3 October, we commented that we are seeing such communications becoming the subject of, and productions in, divorce actions.  However, with the right advice swiftly acted upon, it is possible for the individual who has been caught out to protect these communications, and their privacy.

Deletion in itself may also not provide the user with absolute protection. Even in the world of WhatsApp and end to end encryption. If the data contained within messages has been encrypted at either end, and is not saved on any 3^rd party server, it is often the device itself which has been used for the exchange of the data which could be at risk of access by a 3^rd party to recover personal data. For example, if a mobile phone is stolen or misplaced, then even where data has been deleted, it could be possible for the data to be retrieved.

If you were ever at risk of personal data being used against your will, the most important first step is to seek advice. Everyone has a right to privacy in terms of Article 8 of the ECHR. In Scotland, in many circumstances, it is possible to obtain urgent interim orders to prevent dissemination of private information and return of devices which contain personal data. In order to protect oneself, speed and urgency are the key. If you want to obtain an order to prevent someone from doing something (i.e. dissemination of personal data), you need an order of court to be in place and served (an interim interdict) on the perpetrator, before the dissemination takes place. Separately it is also possible in certain circumstances to ensure that the court proceedings themselves (which are public by default) are anonymised so as to ensure that the interim orders are not defeated by virtue of any reporting of the existence of the proceedings (see. S 11 of the Contempt of Court Act 1981).

[info]

For More Information Contact:
Philippa Cunniff
Mobile: 07487 800 526
Direct Dial: 0131 285 4792
Email: pcunniff@gilsongray.co.uk

[/info]

[info]

For More Information Contact:
Sally Nash
Mobile: 07487 802 488
Direct Dial: 0141 285 4793
Email: snash@gilsongray.co.uk

[/info]

[info]

For More Information Contact:
Keith Anderson
Mobile: 07886 432104
Direct Dial: 0131 516 5371
Email:kanderson@gilsongray.co.uk

[/info]

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.