Today’s decision by the Supreme Court to allow the appeal in WM Morrison Supermarkets plc v Various Claimants may on first glance look like a significant setback to privacy advocates. However, the court’s unanimous judgment should be viewed with some relief by those arguing for greater privacy protections. Whilst the Supreme Court ruled that, on the facts, WM Morrisons Supermarkets plc (“Morrisons”) could not be held liable for the actions of its rogue former employee, the court said that, had it been necessary to decide the question, it would have held that the statutory data protection regime did not exclude the imposition of vicarious liability on employers. Furthermore, the decision also provides no protection to companies who have been held to be at fault for a data breach, since data subjects will have a direct right of action against the company in those cases and will not be relying on establishing vicarious liability. READ MORE
Keily heads up the Cyber & Data Privacy Enforcement & Litigation Practice in London. Keily works with her clients as a "strategic business partner" to navigate privacy and cyber security crises to achieve better commercial, regulatory and judicial outcomes.
As a litigator, Keily has a different perspective on cybersecurity and data privacy issues. She has led the response to investigations by the UK’s Information Commissioner’s Office, the Irish Data Protection Commission, the Competition and Markets Authority, the FCA, the SFO, the U.S. Department of Justice, the FBI, the SEC and Parliamentary Select Committees. Keily has also acted as external legal counsel for privacy and financial service regulators.
On cybersecurity issues, Keily directs cybersecurity incidents and investigations across multiple jurisdictions and incident types from simple business email compromises, to enterprise-wide network intrusions and cyberattacks with national security implications. Keily has worked with national and international law enforcement and is called upon to act as external legal counsel to security and forensics firms when engaging with regulators.
In the civil arena, Keily has led on a number of high profile privacy litigation matters, including civil damages claims and collective actions following personal data breaches and privacy-related judicial reviews. She frequently counsels clients on the growing risk of privacy-related class actions and interventions by privacy advocates in the UK and the EU.
Keily uses the insights from her regulatory practice to inform her advisory work, where she regularly advises stakeholders from legal, information security, privacy and the C-suite on a host of privacy and cybersecurity governance, risk mitigation and regulatory engagement strategies. According to clients Keily has the "subject matter expertise and ability to understand and interact with companies' culture and capabilities, recognising a one size fits all approach doesn't work".
She is ranked as a key practitioner in data protection, privacy and cybersecurity in The Legal 500 and has represented the private sector at the United Nations and the European Criminal Bar Association. Keily also sits on the Law360's 2020 Editorial Advisory Board on Cybersecurity & Privacy and also leads the IAPP Cyber & Privacy Investigations, Enforcement & Litigation Affinity Group. Keily has represented the private sector at the United Nations and the European Criminal Bar Association. She is committed to improving diversity and social mobility in the legal sector.
Prior to joining Orrick, Keily led the Contentious Data Privacy, Law & Strategy practice at PwC having been a litigator at two international law firms before this.
Posts by: Keily Blair
We expect national and international privacy regulators to take a pragmatic and reasonable approach to helping organisations navigate data protection compliance during the current COVID-19 crisis. This week, both the European Data Protection Supervisor (the “EDPS”) and the UK’s Information Commissioner’s Office (the “ICO”) have shown that expected pragmatism. READ MORE
Over the past few days, commentators and, in some cases, government ministers have stated that the GDPR (and by association the Data Protection Act 2018) are preventing some organisations from providing a comprehensive response to the COVID-19 crisis. READ MORE
The decision to appeal a regulatory finding is never taken lightly. By the time a regulator has completed its investigation and notified a company of its intention to fine, the company will have invested significant time and money in responding to the regulatory investigation. As such, there is a real temptation to accept the fine and the accompanying statement from the regulator and move on.
However, in the case of recent regulatory findings, fines and intentions to fine issued by the UK’s Information Commissioner’s Office (the “ICO”) against British Airways, Marriott and Dixons Carphone, all three companies have appealed or indicated an intention to appeal despite the significant difference in the levels of the fines/intentions to fine. In our view, this is related to the spectre of an emerging class action litigation culture in the UK that increases the stakes for any company facing negative regulatory findings.
In this UK-focused blog we explore the potential motivation behind these decisions to appeal, why we expect to see more companies taking this approach in the future, and the steps to be taken in order to appeal decisions by the ICO and we also consider whether the companies that have failed to appeal and are now facing class actions made the right decision when they elected not to appeal.