Using data protection law to defend your reputation: what about the new Data Protection Bill?

Defamation

According to the statistics, defamation claims are decreasing: in 2016 there were only 37 decisions in defamation proceedings (down from 56 in 2015). Moreover, only eight such cases went to trial. Many attribute the decline of the traditional libel trial to the introduction of the "serious harm" test under section 1 of the Defamation Act 2013, which provides that claimants must show that the statement about which they complain has caused, or is likely to cause, "serious harm" to their reputation in order for it to be held as defamatory. In the case of bodies trading for profit, "serious harm" means "serious financial loss". As a consequence of this new test, many have claimed the traditional defamation claim is heading for extinction. That is not entirely true for there is no doubt that the law of defamation continues to be an important and useful tool in helping to protect your reputation.

Media lawyers are eagerly waiting for the Court of Appeal to hand down its judgment in Lachaux v AOL [2015]. This case is likely to provide guidance on what evidence a claimant will need to show to get over the "serious harm" hurdle. In the meantime, claimants have been exploring alternative causes of action in order to protect their reputation. The law of privacy has grabbed all the headlines since New Labour introduced the Human Rights Act in 1998. Who can forget Naomi Campbell, Ryan Giggs and PJS's legal battles with the tabloids? However, increasingly it is complaints brought under another piece of legislation from the same year (the Data Protection Act 1998) that is becoming the new battleground. That is particularly the case since the Court of Appeal's judgment in Vidal-Hall v Google [2015] in which it was held that a claimant did not need to show pecuniary loss in order to seek compensation for a data protection claim.

What is the section 32 journalistic exemption?

For those seeking to use the Data Protection Act to take legal action against the media, attention must be focused on section 32 of the Act, often referred to as the 'journalistic exemption'.

Data protection law limits what organisations can do with your personal information, including how they share it. Whilst the Data Protection Act imposes strict obligations on most data processors, section 32 provides an exemption from most of these requirements if the data is being processed for "journalistic, artistic or literary purposes."

Section 32 has four conditions which must be satisfied before the exemption is available:

1. The data is processed only for journalism, art or literature;
2. With a view to publication of some material;
3. With a reasonable belief that publication is in the public interest; and
4. With a reasonable belief that compliance is compatible with the purposes of art, literature or journalism.

In effect, section 32 protects the media because it enables publishers to process personal data (which would otherwise breach the Data Protection Act) if it reasonably believes that publication of the information would ultimately be in the public interest. For example, section 10 of the Act requires data processors to cease processing personal information when an individual withdraws consent, and where it is causing them unwarranted harm and distress. In contrast to most data processors, the media can seek to rely on the journalistic exemption to refuse section 10 requests.

The intention behind section 32 is obvious: to protect and uphold the right of free speech. However, since its inception, many have expressed concern that section 32 goes further than lawmakers intended, making it difficult to bring any data protection claims against the media. Indeed, the Leveson Report recommended that the scope of section 32 should be reduced.

Section 32 has proved a successful defence in two recent cases where individuals tried to prevent publication of their personal information by the media. In Stunt v Associated Newspapers [2017], Petra Ecclestone's now estranged husband issued a claim against the Daily Mail and the Mail Online for breach of privacy and breaches of the Data Protection Act, and in particular to prevent the Mail from breaching his data protection rights in future stories. The court, however, found in the Mail's favour, noting that investigative journalism requires acquiring and retaining data in a way that would not be possible if the journalistic exemption did not protect the media from the full force of the Act.

Similarly, in ZXC v Bloomberg [2017], a businessman tried to use section 10 of the Act to prevent Bloomberg from publishing leaked information about his company being under criminal investigation. The court held that ZXC could not possibly overcome the section 32 defence in circumstances where Bloomberg had carefully determined that publication was in the public interest, and found in Bloomberg's favour.

The cases above illustrate the force of section 32 under current law. However, change is potentially afoot. With the implementation of the General Data Protection Regulation ("the GDPR") in May 2018, how will the journalistic exemption look in future?

Section 32 under the GDPR

Despite the robust defence currently provided for by section 32, it might look very different when the GDPR comes into force in May 2018. The Government recently announced a new Data Protection Bill under which it is envisaged that section 32 will remain untouched. Whether that remains the case after Parliament get its teeth into the Bill remains to be seen.

One major criticism of section 32 in its current form is that in effect, no claim can be brought against any kind of publisher (not just media ,but also other publishers such as “citizen journalists”) in respect of the unlawful processing of any unpublished personal data which the publisher intends to publish in the future. It is unsurprising that Lord Justice Leveson recommended that these provisions be repealed. On the other hand publishers warn that the obligations imposed on data processors by the GDPR are onerous and without the protections of section 32, it would be extremely difficult to publish any controversial stories about individuals. To date Government has resisted the urge. There are many MPs in parliament, however, who feel strongly about the issue, not least because they themselves have been targeted by the media, rightly or wrongly. It remains to be seen if Parliament will grab the nettle. Campaigners on both sides of the debate have something to say about that.

If you require further information on anything covered in this briefing please contact Alicia Mendonca (020 3375 7614), or your usual contact at the firm on 020 3375 7000. Further information can be found on the Brand and Reputation Management page of our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2017