Litigation: data protection may be an alternative to defamation, says Court of Appeal

February 03, 2017

A recent Court of Appeal ("CA") decision may give a boost to claimants in data protection litigation.  

In the “Moroccan Prince” case[1], in which judgment was handed down on 27th January, the CA recognised that libel, harassment and data protection protect different aspects of the right to private life. It stated that “the relevant provisions of the Data Protection Act (“DPA”) include the aim of protection from being subjected unfairly and unlawfully to distress.”

In making its finding, the CA rejected the submission that the addition of a DPA claim was an attempt to fashion a remedy for damage to reputation where the law of defamation did not provide one.

It also rejected the argument that the claim was an abuse of process and an unnecessary and disproportionate interference with the publisher’s Article 10 right to freedom of expression.

“I can see no good reason of principle why a claim under the DPA cannot be linked to a defamation claim……If [the] defence [to the defamation claim] succeeds, the DPA claim may found an appropriate alternative means of redress, ” said Simon LJ, with whom King LJ and Patten LJ agreed.

The Court of Appeal included a sense check at the end of the judgment, adding that claims would need to be managed carefully so as to ensure that litigation is directed to achieving a “just result in a proportionate manner” and emphasised that DPA claims are not be be used “as a means of stifling criticism under the guise of correcting inaccuracy.”

The Prince’s data protection claim is formulated on the basis that the publisher did not process the Prince’s personal data in accordance with the first and fourth data protection principles, namely that personal data shall be processed fairly and lawfully and that it shall be accurate, and, where necessary, kept up to date. The claim requests rectification of inaccurate statements.

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[1] HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco and Elaph Publishing Limited [2017] EWCA Civ 29

 

Kate Macmillan | Director – Cyber Security and Data Protection Legal Services | PwC - UK | Linkedin
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