Out-Law News 2 min. read

Data protection claims can be 'linked to' claims in defamation, says Court of Appeal

People who claim that they have been defamed by publishers are not barred from also claiming in the same legal proceedings that the publisher has breached data protection laws by processing data about them which is inaccurate, the Court of Appeal in London has ruled.

Media law expert Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com, said the Court of Appeal's judgment has potentially broad implications for the future of defamation law and would not be welcomed by publishers.

The Court's judgment was issued in a case involving Prince Moulay Hicham of Morocco and Arabic news publisher Elaph Publishing in which the Prince has claimed that he was defamed by Elaph in an article published on 8 October 2014 and that the publisher also breached the UK's Data Protection Act (DPA) by processing inaccurate personal data. The article was removed from Elaph's website on 9 October 2014 after a complaint was raised by the Prince.

The Prince has argued that Elaph's article was defamatory of him because, among other things, he said it portrayed him as being behind a plot to "sabotage the image" of King Mohammed VI of Morocco, who is his cousin, according to the judgment. Elaph has refuted the claims that the article was defamatory.

In its ruling, the Court granted permission to the Prince to pursue both his claim for defamation and his claim for breach of the DPA against Elaph in single proceedings at a trial.

Lord Justice Simon, in an opinion endorsed by Lady Justice King and Lord Justice Patten, said that the article published by Elaph was "capable of being regarded by the public generally as an attack on the Prince’s integrity and character such as would seriously harm his reputation in the eyes of reasonable people".

The judge also said there was "no good reason of principle why a claim under the DPA cannot be linked to a defamation claim", as separate claims under the DPA and defamation law "are directed to protecting different aspects of the right to private life".

Lord Justice Simon said the Court can take steps, if necessary, to manage proceedings to ensure that any overlap between the claims does not amount to a disproportionate burden on court time and resources.

"This is very clearly a case which calls for careful management so as to ensure that the litigation process is directed to achieving a just result in a proportionate manner, and, emphatically, is not used as a means of stifling criticism under the guise of correcting inaccuracy," the judge said.

Keenlyside said: "To allow a Data Protection Act claim to be pursued on the grounds of inaccuracy in a publication case where the alleged damage is to reputation, where the article in question was almost immediately removed and where there is no ongoing processing must surely constitute an unnecessary and disproportionate interference with the publisher's freedom of expression rights under the European Convention on Human Rights."

"It is widely accepted that the driving force behind the reforms in the Defamation Act 2013 was a recognition that it should be harder, in certain circumstances, to bring a claim in defamation – harder, for example, to bring a claim against anyone other than the author, editor or publisher, harder to bring a claim against a website operator if it follows certain steps, and harder to bring a claim in this jurisdiction unless it is clearly the appropriate place to do so. Of course, and most importantly of all, a claimant now has to overcome the serious harm threshold. Why go to such lengths to tighten defamation laws if claimants in publication cases can retain the right simply to bring a claim under the Data Protection Act?" he said.

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