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DATA PROTECTION AND THE RIGHT TO REPUTATION: FILLING THE “GAPS” AFTER THE DEFAMATION ACT 2013

Published online by Cambridge University Press:  02 December 2014

David Erdos
David Erdos*
Affiliation:
University Lecturer in Law and the Open Society, Faculty of Law and Fellow in Law, Trinity Hall, University of Cambridge.
*
Address for correspondence: Dr. David Erdos, Trinity Hall, Cambridge, CB2 1TJ, UK. Email: doe20@cam.ac.uk.
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Abstract

Defamation law has historically occupied a position of overwhelming dominance in the vindication of the traditional right to reputation. Nevertheless, liberalisation of this legal framework including through the Defamation Act 2013 has led to a concern that, when analysed from a fundamental rights perspective, “gaps” in the protection provided for natural persons may have emerged. In this new context, there has been a renewed focus on whether data protection may fill the potential lacunae. Data protection law contains a number of important limitations and exceptions and its jurisprudence has been both limited and sometimes confused. Nevertheless, this article argues that its broad purpose and complex structure ensure it will play a significantly augmented role in the future, especially in actions against website operators facilitating the dissemination of information posted by a third party, the publication of opinion, or where either injunctive relief or the correction of inaccurate information is sought (in particular in cases of continuing online disclosure).

Keywords

Defamationdata protectionEU Charterintermediary liabilitymultiple publication rulesocial mediawebsite operators
Type
Articles
Information
The Cambridge Law Journal , Volume 73 , Issue 3 , November 2014 , pp. 536 - 569
Copyright
Copyright © Cambridge Law Journal and Contributors 2014 

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References

1 Robertson, G. and Nicol, A., Media Law (London 2007), 93Google Scholar.

2 C-131/12, Google Spain, Google Inc. v Agencia Espaňola de Protección de Datos (AEPD), Mario Costeja González, Judgment of 13 May 2014, not yet reported.

3 Solove, D.J., The Future of Reputation (New Haven, CN 2007), 30–31Google Scholar.

4 Lidsky, L.B., “Defamation, Reputation, and the Myth of Community” (1996) 71 Washington L.Rev. 19Google Scholar.

5 Sim v Stretch [1936] 2 All E.R. 1237 (HL).

6 Lidsky, “Defamation, Reputation, and the Myth of Community”, p. 7.

7 Ibid., passim.

8 Ibid., passim.

9 Rodgers, W.V.H., Winfield & Jolowicz on Tort (London 2010), 601Google Scholar.

10 ECHR (ETS No. 5), Article 10.

11 R. v Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115, 126.

12 Ibid.

13 Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), Article 11.

14 Axel Springer v Germany (Application no. 39954/28) (2012) 55 E.H.R.R. 6.

15 Article 8, EU Charter of Fundamental Rights.

16 Axel Springer (Application no. 39954/28) (2012) 55 E.H.R.R. 6, at para. [84].

17 Axel Springer (Application no. 39954/28) (2012) 55 E.H.R.R. 6, at para. [87].

18 S (A Child) (Identification: Restrictions on Publication), Re [2004] UKHL 47; [2005] 1 A.C. 593 at [17] (per Lord Steyn). For further analysis of this approach, see Fenwick, H., “Judicial Reasoning in Clashing Rights Cases” in Fenwick, H., Phillipson, G. and Masterman, R. (eds.), Judicial Reasoning under the UK Human Rights Act (Cambridge 2011)Google Scholar, ch. 10.

19 Robertson and Nicol, Media Law, p. 95.

20 Rimel, K., “A New Public Interest Defence for the Media? The House of Lords’ Decision in Reynolds v Times Newspapers Ltd.” (2000) 11 Ent.L.R. 36Google Scholar. Whilst Rimel limited her evaluation to libel, it seems a fair analysis of the general nature of English defamation law prior to recent developments.

21 Wennhak v Morgan (1888) 20 Q.B.D. 635 (HC).

22 Sim [1936] 2 All E.R. 1237 (HL).

23 Youssoupoff v MGN Pictures Ltd (1934) 50 T.L.R. 581 (CA).

24 Byrne v Deane [1937] 1 K.B. 818 (CA), 833, per Slesser L.J.

25 Milo, D., Defamation and Freedom of Speech (Oxford 2008), 11Google Scholar.

26 Broadcasting Act 1990, s. 116; Yousoupoff (1934) 50 T.L.R. 581 (CA).

27 Milo, Defamation and Freedom of Speech, p. 11.

28 Cassell & Co. v Broome [1972] A.C. 1027 (HL), 1071, per Lord Hailsham.

29 Ibid.

30 Senior Courts Act 1981, s. 69.

31 Bonnard v Perryman [1891] 2 Ch. 269 (CA).

32 Courts and Legal Services Act 1990, s. 8; Rantzen v Mirror Group Newspapers Ltd. (1986) [1994] Q.B. 670 (CA); and John v Mirror Group Newspapers Ltd. [1997] Q.B. 586 (CA).

33 As regards most legal actions, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 now generally prohibits such cost-shifting. However, as a result of Conditional Fee Agreements Order, SI 2013/689, the commencement of this reform in relation to both defamation and privacy proceedings has currently been stayed.

34 Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, 192, per Lord Nicholls.

35 Broadly construed under the Parliamentary Papers Act 1840, s. 1.

36 Defamation Act 1996, s. 14.

37 Joseph v Spiller [2010] UKSC 53; [2011] 1 A.C. 852.

38 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] All E.R. 449 (HL), 461 (Lord Porter).

39 London Artists v Littler [1969] 2 Q.B. 375, 391, per Lord Denning.

40 Clarke v Molyneux (1877) 3 Q.B.D. 237, 246.

41 See Defamation Act 1952 and both Defamation Act 1996, Sch. 1, Part 1 (qualified privilege not subject to explanation or contradiction) and Defamation Act 1996, Sch. 1, Part 2 (qualified privilege subject to allowing for explanation or contradiction by those persons referred to).

42 Reynolds [2001] 2 A.C. 127, at p. 202, per Lord Nicholls.

43 Ibid., at p. 197. As Rimel (note 20 above) states, prior to this judgment, such privilege was “not recognised as applying to statements published by the media to the general public except, possibly, in cases of extreme emergency” (p. 37).

44 Reynolds [2001] 2 A.C. 127, at p. 202.

45 Ibid., at p. 205.

46 Loveland, I. “The Ongoing Evolution of Reynolds Privilege in Domestic Libel Law” (2003) 14 Ent.L.R. 178, 182Google Scholar.

47 Ibid.

48 Jameel & Or v Wall Street Journal [2006] UKHL 44, [2007] 1 A.C. 359 at [56], per Lord Hoffmann.

49 Ibid., at para. [33], per Lord Bingham.

50 Ibid., at para. [54], per Lord Hoffmann. See more specifically Charman v Orion Publishing Ltd. [2007] EWCA Civ 97; [2008] 1 All E.R. 750; Seaga v Harper [2008] UKPC 9; [2009] 1 A.C. 1.

51 This defence can be claimed by a range of secondary publishers including “the operator of … a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control”. However, such a publisher must demonstrate that he “took reasonable care in relation to its publication” and “did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement”.57 In Godfrey v Demon Internet [2001] Q.B. 201, an Internet Service Provider (IPS) sought to rely on this defence in relation to the republication of an anonymous posting made on a US-based newsgroup. However, the defence was struck out on the basis that the defendant had not removed posting on notice and, therefore, had inter alia failed to take reasonable care in relation to it.

52 See Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013). This “hosting” shield only applies if upon obtaining knowledge of illegal activity or information, or even facts or circumstances from which such illegality is apparent, the provider “acts expeditiously to remove or to disable access to the information” (para. 19(a)(ii)). See also the related defences for mere conduit (para. 17) and caching (para. 18).

53 Leveson, B., An Inquiry into the Culture, Practices and Ethics of the Press (London 2012), 999Google Scholar.

54 Ibid.

55 Bundesdatenschutzgesetz (BDSG) 1977, s. 1(1). This is translated as ensuring against “misuse”, “to prevent harm to any personal interests that warrant protection”. See Gesellshaft für Datzenschutz under Datensicherung, Law on the Protection Against the Misuse of Personal Data in Data Processing (Frankfurt am Main 1977).

56 Loi no. 78–17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés, art. 1 (“must not undermine human identity, nor human rights, nor privacy, nor individual or public liberties” (own translation)).

57 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108), Art. 1.

58 Council Directive (EC) No. 95/46 (OJ 1995 L 281 p. 31), Recital 11. Although the Council of Europe Convention remains in full force, it is the EU Directive which was assumed must the greater practical importance.

59 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108) Explanatory Report, para. 25 (“[T]he unfettered exercise of the freedom to process information may, under certain conditions, adversely affect the enjoyment of other fundamental rights (for example privacy, non-discrimination, fair trial) or other legitimate personal interests (for example employment, consumer credit). It is in order to maintain a just balance between the different rights and interests of individuals that the convention sets out certain conditions or restrictions with regard to the processing of information. No other motives could justify the rules which the Contracting States undertake to apply in this field”).

60 Council Directive (EC) No. 95/46, Recital 30 (stating that processing otherwise compatible with the Directive will be lawful so long as it carried “in the legitimate interests of the natural or legal person, providing that the interests or the rights and freedoms of the data subject are not overriding”). Comparing the English language version of the Directive with that of the French and German, it is clear that, but for a typographical error, this same wording would be reflected in Art. 7(f). Instead, this article refers to the “interests for fundamental rights and freedoms of the data subject”.

61 It should be noted that Data Protection Authorities took an early interest in policing threats to such interests. For example, even in the mid-1980s, the French DPA, when assessing a new electronic messaging service, stressed the dangers of “risque de diffusion messages anonymes injurieux ou portant atteinte à la réputation des personnes” Commission nationale de l“informatique et des libertés, 7e rapport d'activité (Paris 1986), p. 136.

62 Charter of Fundamental Rights, Article 8.

63 Jay, R., Data Protection Law and Practice, 4thed. (London 2012), 1Google Scholar.

64 DPA, s. 1(1). Cf. Data Protection Directive, art. 2(b).

65 Formally defined as “equipment operating automatically in response to instructions given for that purpose” (DPA, s. 1(1)).

66 Defined as one which is “structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible” (DPA, s. 1(1)).

67 C-101/01, Criminal Proceedings against Lindqvist [2003] ECR I-12971 at [26].

68 DPA, s. 1(1).

69 Jay, Data Protection Law and Practice, p. 171.

70 “Amendments Likely on Data Protection”, Bookseller, 5 July 1991, p. 8.

71 DPA, s. 1(1).

72 Ibid.

73 E-Commerce Directive, art. 1(5)(b).

74 Electronic Commerce (EC Directive) Regulations, SI 2002/2013, para. 3(1)(b).

75 DPA, Sch. 1, Part 1.

76 DPA, Sch. 1, Part 1, para. 1.

77 DPA, Sch. 1, Part 1, para. 3.

78 DPA, Sch. 1, Part 1, para. 4.

79 DPA, s. 70(2).

80 DPA, Sch. 1, Part 2, paras. 1–3 and Data Protection (Conditions Under Paragraph 3 of Part II of Schedule 1) Order, 2000, SI 2000/85.

81 DPA, s. 7.

82 DPA, s. 10.

83 DPA, s. 13.

84 DPA, s. 14(1).

85 DPA, s. 13(3).

86 Data Protection Directive, art. 28.

87 DPA, s. 40.

88 DPA, s. 55A.

89 DPA, s. 42.

90 DPA, Sch. 1, Part 2, para. 7.

91 DPA, s. 13(2)(b).

92 Ibid.

93 DPA, s. 13(3).

94 See DPA, s. 10(4) (right to stop processing) and s. 14(1) (right to erasure and rectification).

95 DPA, s. 32.

96 DPA, s. 32(4)(b).

97 See DPA, s. 46.

98 DPA, s. 36. Cf. Data Protection Directive, art 3(2).

99 Durant v Financial Services Authority [2003] EWCA Civ 1746; [2003] All E.R. (D) 124 (Dec), 28. The ratio of the Durant case appears to have been side-lined by later case law even in the domestic context. Thus, in the recent case of Edem v Information Commissioner, Financial Services Authority [2014] EWCA Civ 92, the Court of Appeal recently stated that all information which was “obviously about” an individual would be personal data (at para. [22]) and further found that even “[a] name is personal data unless it is so common that without further information … a person would remain unidentifiable despite its disclosure” (at para. [20]).

100 [2007] EWCA Civ 262, 78; [2007] 3 CMLR 9 at [76].

101 See Information Commissioner, Line to Take–Dealing with Complaints about Information Published Online (2011) <www.ico.org.uk/about_us/how_we_comply/disclosure_log/~/media/documents/disclosure_log/IRQ0417298b.ashx> accessed 19 August 2014.

102 Data Protection Directive, art. 6.

103 Data Protection Directive, art. 22.

104 Data Protection Directive, art. 13(1)(g).

105 Council of the European Union, Council Document 4730/95 (Annex I) (8 February 1995) (on file with the author).

106 C-465/00, Rechnungshof v Österreichischer Rundfunk [2003] ECR I-4989, at [91], [93].

107 The subject of specifically permissive regulation under the Data Protection Directive, art 9.

108 C-73/07, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECR I-09831 at [56].

109 Lindqvist [2003] ECR I-12971, at para. [47].

110 Robertson and Nicol, Media Law, p. 113.

111 Defamation Act 1952, s. 3(1).

112 In other words, that the statement was made without caring whether it was true or false.

113 Shapiro v La Mora [1923] All E.R. Rep 378.

114 Dunlop v Maison Talbot (1904) 20 T.L.R. 579 (CA).

115 Greers Ltd v Pearman & Corder Ltd (1922) 39 R.P.C. 406, 417 (CA).

116 Defamation Act 2013 (Commencement) (England and Wales) Order 2013, SI 2013/3027.

117 The Act has no application to Northern Ireland. As regards Scotland, only ss. 6, 7(9), 15, 16(5), and 17(3) apply. These relate to the new defence for peer-reviewed statements in scientific or academic journals – a matter which has little relevance to the subject of this article. See Defamation Act 2013, s. 17(2)–(3).

118 Phillipson, G., “The ‘Global Pariah’, the Defamation Bill and the Human Rights Act” (2012) 63 N.I.L.Q. 146Google Scholar.

119 Defamation Act 2013, s. 1.

120 Defamation Act 2013, s. 2 (replacing common law justification).

121 Defamation Act 2013, s. 3 (replacing common law fair comment).

122 Defamation Act 2013, s. 4 (replacing the common law Reynolds defence).

123 Defamation Act 2013, s. 5 (provision for a new defence to defamation action brought against operators of websites), s. 6 (qualified privilege in relation to peer-reviewed statements in scientific or academic journals), and s. 7 (provision for qualified or absolute privilege in relation to a range of either verbatim or summarised reports).

124 Defamation Act 2013, s. 8.

125 Defamation Act 2013, s. 11.

126 As regards the latter, the wording that the defendant need only have “reasonably believed that publishing the statement complained of was in the public interest” (s. 4(1)(b)) may be thought to have widened the defence by introducing a greater subjective element. However, the Government (which proposed the wording) was clear that “the intention in this provision is [merely] to reflect the existing common law as most recently set out in Flood v Times Newspapers”. See Ministry of Justice, Defamation Act 2013 Explanatory Notes (2013) <http://www.legislation.gov.uk/ukpga/2013/26/notes> accessed 10 April 2014.

127 Defamation Act, s. 1.

128 Milo, Defamation and Freedom of Speech, p. 11.

129 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] Q.B. 946 at [70].

130 Ibid., at para. [55].

131 Thornton v Telegraph Group [2010] 1 W.L.R. 1986 at [100].

132 Phillipson, “The ‘Global Pariah’”, p. 168.

133 Ministry of Justice's Defamation Act 2013 Explanatory Notes, p. 3.

134 Joseph [2010] UKSC 53; [2011] 1 A.C. 852.

135 Ibid., at para. [108].

136 Ibid.

137 Ibid.

138 The rewording also allows defamatory opinions related to facts which, though false, where “asserted to be a fact” on a certain privileged occasions (Defamation Act 2013, s. 3(4)(b)) including publication on a matter of public interest or of a peer-reviewed statement in a scientific or academic journal (ibid., s. 3(7)).

139 Phillipson, “The ‘Global Pariah’”, p. 178 (emphasis).

140 Mosley v News Group Newspapers [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20.

141 Defamation Act 2013, s. 7(1).

142 Defamation Act 2013, ss. 7(4)–(9). In order to benefit from these new defences, however, the publisher must satisfy either a “public interest” or “public benefit” test (see s. 7(2) read with s. 15(3)) and also ensure that, if the subject of the statement so requests, he publishes “in a suitable manner a reasonable letter or statement by way of explanation or contradiction” (s. 15(2)(a)).

143 Defamation Act 2013, s. 6.

144 Defamation Act 2013, s. 5(1).

145 SI 2013/3028.

146 Ibid., at para. 3(1).

147 Ibid., at para. 2.

148 Ibid., at para. 5.

149 Ibid., at para. 6.

150 Ibid., at para. 6(3).

151 Ibid., at para. 8(2)(i).

152 Ibid., at para. 8(2)(ii).

153 It should be noted that, if a successful action is brought against the poster, then the court is empowered to order the operator of the website to remove the statement (Defamation Act 2013, s. 13(1)(a)).

154 SI 2002/2013. This “hosting” shield only applies if upon obtaining knowledge of illegal activity or information, or even facts or circumstances from which such illegality is apparent, the provider “acts expeditiously to remove or to disable access to the information” (para. 19(a)(ii)). See also the related defences for mere conduit (para. 17) and caching (para. 18).

155 Defamation Act 2013, s. 5(12).

156 HC, Public Bill Committee, Defamation Bill Deb., 21 June 2012, col. 132 (Jonathan Djanogly M.P., Parliamentary Under-Secretary of State).

157 Defamation Act 2013, s. 5(11).

158 HL Deb., vol. 742, col. GC 195 (15 January 2013) (Lord Ahmed of Wimbledon, Government Whip).

159 Defamation Act 2013, s. 10.

160 Limitation Act 1980, s. 4A.

161 For the seminal statement of this rule, see Duke of Brunswick v Harmer [1849] 14 Q.B. 185.

162 As it was in Loutchansky v Times Newspapers Limited [2001] EWCA Civ 1805.

163 Phillipson, “The ‘Global Pariah’”, p. 181.

164 Or a “section of the public” (Defamation Act 2013, s. 8(2)).

165 Defamation Act 2013, s. 8(1)(b).

166 Defamation Act 2013, s. 8(4).

167 Limitation Act 1980, s. 32A. For a similar provision regarding personal injuries or death, see ibid., s. 33.

168 Phillipson, “The ‘Global Pariah’”, p. 183.

169 The last change in primary legislation was made in 2008 when provisions empowering the Information Commissioner to impose monetary penalties on data controllers were introduced. See Data Protection Act 1998, s. 55A as amended by Crime Justice and Immigration Act 2008, s. 144. These provisions were brought fully into forced on 6 April 2010 as a result of the Data Protection (Monetary Penalties) Order, SI 2010/910.

170 Quinton v Peirce [2009] EWHC 912 (QB), [2009] F.S.R. 17.

171 Ibid., at para. [59].

172 Ibid., at para. [57].

173 Ibid., at para. [4]. From the context, it is clear that Eady J. was talking about the special provisions regulating processing for the purposes of journalism, artistic purposes, and literary purposes as set out, in particular, in DPA, s. 32.

174 Ibid., at para. [92].

175 Phillipson, “The ‘Global Pariah’”, p. 186.

176 Quinton [2009] EWHC 912 (QB), [2009] F.S.R. 17, at para. [93].

177 Ibid., at para. [68].

178 Aldhouse, F., “Political Opinions: Injurious Falsehood: Quinton v. Peirce & Cooper” (2009) 6 Data Protection Law and Policy 7Google Scholar.

179 Österreichischer Rundfunk [2003] ECR I-4989.

180 Aldhouse, “Political Opinions”, p. 8.

181 M. Tugendhat, “The Data Protection Act 1998 and the Media” (1999) Yearbook of Copyright and Media Law 115.

182 Clift v Slough Borough Council [2009] EWHC 1550 (QB); [2010] E.M.L.R. 4.

183 Clift v Slough Borough Council [2010] EWCA Civ 1171; [2011] 1 W.L.R. 1774.

184 Clift v Slough Borough Council (HC), at para. [128].

185 Kearns v General Council of the Bar [2003] EWCA Civ 331.

186 Clift v Slough Borough Council (HC), at para. [55] (citing Kearns [2003] EWCA Civ 331, at para. [53]).

187 Clift v Slough Borough Council (HC), at para. [23]. However, at para. [99], Tugendhat J. held that, even if he had accepted such an “established relationship” approach, he would have rejected its applicability in the case of publication to partnership organisations or non-employees since these entities were not in an established relationship with the Defendant.

188 An aspect of her art. 8 right to respect for private life.

189 Clift v Slough Borough Council (CA), at para. [38].

190 As detailed at para. [43] of Clift v Slough Borough Council (HC), Ms Clift had originally brought a claim under the DPA alleging that the Registrar acted in violation of the Act's accuracy requirements. Moreover, it appears that, separately from the defamation proceedings, she was continuing to pursue proceedings specific to the DPA (at para. [71]). Tugendhat J. left open the possibility that she may have wider rights in relation to the DPA than were vindicated in her defamation action (at para. [88]).

191 Kearns [2003] EWCA Civ 331, at para. [45], cited in Clift v Slough Borough Council (HC), at para. [121].

192 Clift v Slough Borough Council (HC), at para. [122].

193 Ibid., at para. [120].

194 Ibid., at para. [118].

195 Clift v Slough Borough Council (CA), at para. [19].

196 Ibid., at para. [35].

197 Clift v Slough Borough Council (HC), at para. [104].

198 Law Society, Hine Solicitors & Kevin McGrath v Rick Kordowski [2011] EWHC 3185 (QB) at [1].

199 Ibid., at para. [10].

200 Ibid., at para. [9]. It was also clear that, on occasion, the ability of the defendant to delete material from the website had “been used as a tool to demand money from those it names” (at para. [116]).

201 Ibid., at para. [1].

202 Ibid., at paras. [132]–[134]. Breach of the DPA's accuracy provisions was not directly considered.

203 Ibid, at paras. [139]–[142].

204 For completeness, it should be noted that Tugendhat J. found that the Law Society itself did not itself have such a common interest. He therefore held that the action for the Represented Claimants (i.e. the other solicitors) should be continued by the Second and Third Claimants rather than the Law Society as the Claimants themselves had proposed. See ibid., at para. [165].

205 Ibid., at para. [163].

206 Ibid., at para. [164].

207 Ibid., at para. [184].

208 Bonnard [1891] 2 Ch. 269 (CA).

209 It should be noted that Tugendhat J. did find it possible to grant a perpetual injunction under the Protection from Harassment Act 1997 (see ibid., at paras. [163]–[164]). Consideration of this statute, however, is outside the scope of this article.

210 Law Society [2011] EWHC 3185 (QB), at para. [166].

211 Quoted in Law Society [2011] EWHC 3185 (QB), at para. [96].

212 Ibid., at para. [100].

213 Ibid.

214 Ibid, at para. [99].

215 Google Spain, at para. [98].

216 Ibid., at para. [33].

217 Ibid., at para. [85].

218 Ibid., at para. [38].

219 Ibid., at para. [93].

220 Ibid., at para. [97].

221 Ibid., at para. [98].

222 Jay, Data Protection Law and Practice, p. 20.

223 B. Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, p. 999.

224 Ibid., at p. 1061.

225 Ibid., at p. 1107. It should be noted that Kordowski actually rejected the proposition that the website Solicitors From Hell could benefit from the DPA's special protections for processing for the purposes of journalism, artistic purposes, and literary purposes (s. 32). Whilst acknowledging that “[t]oday anyone with access to the internet can engage in journalism at no cost”, it also found that the “[j]ournalism that is protected by s. 32 involves communication of information or ideas to the public at large in the public interest” (at para. [99]). It is certainly true that the DPA requires that the data controller has a reasonable belief that publication is the public interest to benefit from s. 32's substantive protections (ss. 32(1)–(2)). This requirement was clearly not met in this case. As regards the procedural protection from injunctive relief, however, s. 32 only expressly requires that the data controller claims or it appears to the court that processing is only for the purposes of journalism, artistic purposes, and/or literary purposes, and with a view to the publication of material not previously published by the data controller 24 hours previously (ss. 32(4)–(6)). It seems, therefore, that Tugendhat J. implied into the DPA's definition of the purposes of journalism, artistic purposes, and literary purposes some kind of public interest threshold.

226 Ibid., at p. 1811.

227 Ibid., at p. 1811.

228 Ibid., at p. 1812.

229 Ibid., at p. 1810.

230 Ibid., at p. 1810.

231 Ibid., at p. 1810.

232 Ibid., at p. 1813.

233 Letter from Rt Hon Chris Grayling, Lord Chancellor and Secretary of State for Justice, to the Chair of the House of Commons Home Affairs Select Committee, 22 September 2013 <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/524/524we29.htm > accessed 20 August 2014.

234 Information Commissioner's Office, “Social Networking and Online Forums – When Does the DPA Apply?” <ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Detailed_specialist_guides/social-networking-and-online-forums-dpa-guidance.ashx> accessed 9 April 2014.

235 Ibid., at p. 15. At other times, however, the Office has acknowledged the validity of the CJEU's Lindqvist ruling (also confirmed in Satamedia). For example, giving evidence to the House of Commons’ Justice Committee on 4 September 2013, the current Information Commissioner Christopher Graham stated: “There is European case law that says–in a nutshell–that open online publication means the processing of personal data done in connection with this falls outside data protection law’s ‘domestic purposes’ exemption”, House of Commons, Justice Committee, The Committee's Opinion on the European Union Data Protection Framework Proposals Volume I (London 2010), Evidence 57.

236 Information Commissioner's Office, note 233 above, p. 16.

237 The rationale offered by the guidance was as follows: “If the site only allows posts subject to terms and conditions which cover acceptable content, and if it can remove posts which breach its policies on such matters, then it will still, to some extent, be determining the purposes and manner in which personal data is processing. It will therefore be a data controller” (ibid., at p. 11).

238 Ibid., at p.12.

239 Ibid., at pp. 13–14. Seemingly as an alternative to the stipulation to remove material, the guidance states that the site “might wish to set up a mechanism which allows it to add a note to a post indicating that a data subject disputes its factual accuracy”. The ICO's position nevertheless remains that “it will be probably be more practical for the site to simply remove or suspend access to the dispute post in this type of situation” (p. 14). In any case, following the interpretation of “reasonable care” established in relation to the Defamation Act 1996 in Godfrey [2001] Q.B. 201, it would appear that, if the data subject presented clear evidence that the information processed was in fact inaccurate, the data controller would not have taken “reasonable steps” unless any note made clear that this was indeed the case.

240 Ibid., at p. 14.

241 Information Commissioner's Office, ICO Response to the European Union Court of Justice Ruling on Online Search Results <http://ico.org.uk/news/latest_news/2014/ico-response-to-european-union-court-of-justice-ruling-14052014> accessed 19 August 2014.

242 Information Commissioner's Office, Data Protection and Journalism: A Guide for the Media <http://ico.org.uk/~/media/documents/library/Data_Protection/Detailed_specialist_guides/data-protection-and-journalism-media-guidance.pdf> accessed 22 September 2014.

243 Ibid., at p. 27.

244 Ibid., at p. 28.

245 Ibid., at p. 13–14.

246 Defamation Act 2013, s. 1.

247 Sim [1936] 2 All E.R. 1237 (HL).

248 Mullis, A. and Scott, A., “Tilting at Windmills: The Defamation Act 2013” (2014) 77 M.L.R. 107Google Scholar.

249 Defamation Act 2013, s. 3.

250 Defamation Act 2013, s. 5.

251 Either because the defendant cannot in fact be traced or is impecunious or is out of jurisdiction.

252 Bonnard [1891] 2 Ch. 269 (CA).

253 H. Tomlinson, Revisited and Updated: Strasbourg on Privacy and Regulation Part 3: A Balance between Reputation and Expression? (Inforrm's Blog 23 June 2010) <http://inforrm.wordpress.com/2010/06/23/revisited-and-updated-strasbourg-on-privacy-and-reputation-part-3-%E2%80%9Ca-balance-between-reputation-and-expression%E2%80%9D/> accessed 17 April 2013.

254 Hurst, A. and Gilbert, J., “Using DP Act to Protect Reputation” (2013) 66 P.L.&B.U.K.N. 16Google Scholar.

255 Limitation Act 1980, s. 4A.

256 For full details, see note 33 above.

257 DPA, s. 13(3). The court must consider such an understanding “reasonably practicable”.

258 Clift v Slough Borough Council (HC), at para. [120].

259 Ibid., at para. [70].

260 As previously noted, given removal of the “public interest” requirement from the “honest opinion” defence in the new Defamation Act 2013 (s. 3), it seems clear that defamation law will no longer provide any redress in these cases. The possibility of the DPA stepping into the breach as a result has already been briefly mooted by Phillipson, “The ‘Global Pariah’”, p. 178.

261 Hurst and Gilbert, “Using DP Act to Protect Reputation”, p. 18.

262 Limitation Act 1980, s. 2.

263 DPA, s. 42. Moreover, although his powers are somewhat circumscribed where the processing in question is solely journalistic, literary, or artistic, in these cases, the Commissioner can also be required to consider providing assistance to the claimant in DPA civil proceedings against the relevant data controller. See DPA, s. 53.

264 Home Office, Consultation Paper on the EC Data Protection Directive (95/46/EC) (London 1996), 5.