Case Summary and Outcome

The U.K. High Court allowed an application made by Associated Newspapers Ltd. for a stay of proceedings under Section 34(2) of the Data Protection Act 1998 (DPA) on the basis that personal data it held was being processed for journalistic purposes with a view to publication. The Claimant, James Stunt is suing Associated Newspapers for misuse of private information, harassment and breaches of the Data Protection Act 1998. Stunt claims that Section 32(4) is incompatible with European Law. Therefore his personal data held by Associated Newspapers should be destroyed and they should cease processing it. The Court reasoned that Section 32(4) the DPA was an important provision in the balancing of data protection rights against the rights of free speech as laid down in the DPA and the European Convention on Human Rights.  Specifically, Section 32(4) fell within the ambit of the margin of appreciation vested upon Member States in preventing the stifling of journalistic rights by prior restraint on publication if the publisher was successfully able to assert the truth of the published material.

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Facts

Associated Newspapers, publisher of the Daily Mail, Mail on Sunday and Mail Online, is being sued by James Stunt, who has for several years complained about the publication in Mail titles of material about him, including articles about his business activities and history.

Stunt issued proceedings against the Defendant in January 2016 alleging misuse of private information, harassment and breaches and threatened breaches of the DPA.  His claims under the Act include claims for damages for past breaches of the Act.  But he also seeks the following relief:

• Orders for compliance with subject access requests made under Section 7 of the DPA.
• Orders for compliance with requests under Section 10 of the DPA to cease, or not to begin, processing of his personal data.
• Orders under Section 14 of the DPA that Associated should erase and destroy personal data and cease processing it.

Associated Newspapers applied to the Court for a stay of the proceedings under Section 32(4) of the DPA. However, Stunt argued that a stay of proceedings was incompatible with Articles 9, 22 and 23 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (“the Directive”) which the DPA was intended to implement; and/or that s. 32(4) was incompatible with Articles 7, 8, and 47 of the Charter of Fundamental Rights of the European Union (2012/C 326/02) (“the Charter”); and that the Court should accordingly disregard s. 32(4) applying the principle in Marleasing SA v. La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135 (“the Marleasing principle”); alternatively by application of the principle in Benkharbouche v. Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs intervening) [2015] EWCA Civ 33 [2016] QB 347 (“the Benkharbouche principle”).

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Decision Overview

The Hon. Mr. Justice Popplewell ruled as follows:

Legal Framework

Article 9 of the Directive allows Member States to derogate from the provisions of the Chapter for processing of personal data for journalistic or artistic or literary purposes (“special purposes”) provided they are necessary to reconcile the right to privacy with the right to freedom of expression.

The balance between data protection rights and freedom of expression has been repeatedly emphasized in European case law for instance, by the Court of Justice in Schrems v. Data Protection Commissioner (Case C-362/14) [2016] QB 527 and, in The Sunday Times v. United Kingdom (1992) 14 EHRR 229, where the European Court of Human Rights (ECtHR) held that freedom of expression for the media not only protects information and ideas that favor society, but also those that shock, offend and disturb and that, likewise, the public has the right to receive such information.

These rights and freedoms have similarly been protected in the Charter and the DPA. With regard to the rights of data subjects, Section 7 of the DPA confers upon all data subjects the right to be informed about the purpose, recipient and the processing of personal data. The data subject is also entitled under Section 10, to prevent the processing of data which might cause substantial and unwarranted damage to him or her. Under Section 14, if the court is satisfied that the data subject has suffered damage as a result of any contravention and there is risk of further contravention, it may order the rectification, blocking, erasure or destruction of any of those data.

On the other hand, freedom of expression is also protected under the DPA which provides an exemption for the processing of personal data for journalistic or artistic or literary purposes or if the data controller reasonably believes that its publication would be in public interest (Section 32(1). Moreover, where at any time (“the relevant time”) in any proceedings against a data controller it appears that any personal data to which the proceedings relate are being processed only for the special purposes, and held with a view to publication of material which had not been published 24 hours prior to the relevant time, the court must stay the proceedings until either a determination by the Information Commissioner has taken effect or the data controller has withdrawn his claim (Sections 32(4) and (5)).

The Court distinguished Section 32(4) from Section 32(1) on the basis that the former only permitted a stay if the material was new; held with a view to being published; and does not involve any objective assessment of whether the conditions are or are not met. The claim on the part of the data controller that the two relevant conditions are met is policed by the Information Commissioner under Section 45 and can also result in a revocation of the stay, which can be challenged by the data controller.

Compatibility

On the issue of compatibility, Justice Popplewell noted that Member States enjoyed a margin of appreciation when giving effect to the provisions of the Directive. In Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy (Case C C-73/07) [2010] All ER (EC) 213, the Advocate General described this as follows: “it must be concluded from the broad scope of the Data Protection Directive, which already reaches almost beyond the establishment of the internal market, that the Court, when striking a balance between conflicting fundamental rights in the context of the Directive, should in principle allow the Member States and their courts a broad discretion within which their own traditions and social values can be applied.”

Therefore, Justice Popplewell said the central question was whether Section 32(4) also forms part of this balancing of rights. Relying on Campbell v. MGN Ltd [2003] QB 633, the Claimant argued that Section 32(1) was intended to balance the right to privacy with the journalistic rights under Article 10 of the ECHR and Section 32(4) was only inserted as a procedural fetter, in other words, Section 32(4) was not “necessary” as part of the Directive’s process of balancing rights of free speech against data protection rights.

On the other hand, the Defendant argued that Section 32(4) was added in order to regulate the extent to which prior restraint could be imposed on journalistic expression and was by itself, a substantive right.

The Judge proceeded to examine the relevant Hansard material on the subject finding that it was repeatedly emphasized throughout the Bill’s legislative stages that “Subsections (4) and (5) [….] together with later provisions, [were] directed at ensuring that no injunctions or other forms of relief depending solely on data protection considerations [could] be used to stop processing pre-publication in special purposes cases.”

The Court concluded that it was clear that Parliament intended Section 32(4) to be an important provision in the balancing of rights. In fact, the Court’s practice has also been to refuse any restraint on publication if the publisher is successfully able to assert the truth of the published material, as is evident from its decisions in Bonnard v. Perryman [1891] 2 Ch 269 and Greene v. Associated Newspapers [2005] QB 972.

The Judge observed that the problem stems from the very existence of such powers of restraint and that European case law is full of examples of the chilling effect created by accepting that newspapers should pre-notify the data subject of the material that is to be published.

In light of the parliamentary intention, Justice Popplewell decided that Section 32(4) was not incompatible with Article 9 of the Directive. Rather, it fell within the ambit of the margin of appreciation vested upon Member States in preventing the stifling of journalistic rights under Article 10 ECtHR. Consequently, the Judge did not need to consider whether in the event of incompatibility it would have been possible to disregard Section 32(4) by application of the Marleasing principle or otherwise.

Scope of the stay

The Judge rejected the Claimant’s argument that a stay of only the DPA claims would give rise to great difficulties in relation to what was to happen to the remainder of the proceedings reasoning that Section 32(4) only imposes a stay with regard to the DPA claims and what happens to the remainder of the claims would be a matter for the discretion of the Court.

Accordingly the Judge held that the measures in Section 32(4) and (5) constituted a proper balance of the competing rights, comprehensively dismissing the Claimant’s argument that Section 34(2) was incompatible with EU law.

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