New development in the interaction of defamation and data protection claims

April 20, 2017

The English Court of Appeal in HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco – v – Elaph Publishing Limited (2017) EWCA Civ 29 held that a claimant could include an action under the Data Protection Act 1998 (“DPA”) as an alternative means of redress when also suing for defamation.   The decision has strengthened the hand of individuals who wish to complain about inaccurate information published about them, and may enable them to succeed in a claim where the publication is not even defamatory.

It had been submitted on behalf of the claimant that while a libel claim and a claim under the DPA were distinct and separate, the weaker the libel claim the more important it was that a claim under the DPA could be advanced.

The Court of Appeal saw no good reason in principle why a claim under the DPA could not be linked to a defamation claim taking the view that the different causes of action were directed to different aspects of the rights to private life.  The Court in allowing the DPA claim to stand stressed the importance of managing the concurrent claims in accordance with the courts’ overriding objective, and ensuring that the litigation process was not used “as a means of stifling criticism under the guise of correcting inaccuracy”.

Under the DPA, personal data must be processed in a way that is:

  1. fair and lawful;
  2. accurate and, where necessary, up-to-date; and
  3. in accordance with the rights of data subjects under the DPA

It should be noted that when the General Data Protection Regulation (“GDPR”) becomes effective in May 2018 these core principles will remain unchanged.

This decision has made it clear that even where a defendant is on the right side of the law of defamation, a claimant can still bring a DPA clam where inaccurate data has been published.  Even if the claimant has suffered no damage, he or she can still recover compensation under the DPA for distress caused, provided that the processing was for journalistic, artistic or literary purposes, although such claims will still be subject to the public interest defence.

Previously the courts have expressed doubts about allowing concurrent DPA and libel claims and this decision will lead to concerns in the media industry about the change of approach taken by the Court of Appeal.  While claimants have been adding DPA claims to libel actions as a matter of routine this decision highlights that DPA claims can, and probably now will be, a key weapon in a claimant’s armoury if the claim for libel fails.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.