In the recent case of Prince Moulay Hicham v Elaph Publishing Limited, the Court of Appeal held in a unanimous decision that a claimant could include an action under the UK Data Protection Act 1998 (‘DPA’) as an alternative means of redress. This case will strengthen the hand of individuals who wish to complain about inaccurate information that is published about them, and may enable them to succeed in a claim where the publication is not even defamatory.
Elaph Publishing Limited (“Elaph”) produces an online Arabic newspaper. In October 2014, it published an article about Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco. The article said that the Prince had met with a former Moroccan boxer to urge him to raise a case against a close aide of the King of Morocco on the basis that the aide had made death threats. The Prince complained about the article the day after publication and it was removed. The Prince issued a libel claim the following day.
The judge at first instance deemed the words in the article ‘incapable’ of being defamatory, on the basis that it was not defamatory of someone to say they are working against the interests of a ruler. The Court of Appeal, however, overturned this judgment on the basis that what was outlined in the article was more than simply disloyalty or agitation for reform, and that the words used were capable of bearing the meaning that the Prince had shown himself to be “devious, underhand and disloyal”.
The DPA Claim
At first instance, the judge had allowed the Prince to amend his claim to add a concurrent claim based on the DPA. On appeal, Elaph submitted that a claimant should only be permitted to advance a defamation claim and DPA claim in the same proceedings if the court is satisfied that its resources are being used appropriately, and that the DPA claim would be a necessary and proportionate interference with the defendant’s right to freedom of expression. In this case, the interference did not seem necessary or proportionate, given that the article was removed quickly and there was no risk of future publication. Elaph noted that there could be far-reaching consequences if DPA claims were allowed to proceed in respect of factual inaccuracies in the context of political debates.
The Prince submitted that, while the libel claim and the claim under the DPA were distinct and separate grounds, 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 of principle why a claim under the DPA could not be linked to a defamation claim. The different causes of action were directed to different aspects of the rights to private life. Although the Court allowed the DPA claim to stand, it stressed the importance of managing the concurrent claims in accordance with the 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:
i. fair and lawful;
ii. accurate and, where necessary, up-to date; and
iii. in accordance with the rights of data subjects under the DPA.
When the General Data Protection Regulation (‘GDPR’) becomes effective in May 2018, these core principles (as now set out in Article 5(1) GDPR) will remain unchanged.
The Prince Moulay Hicham case has made it clear that even where a defendant is on the right side of libel laws, an individual could still bring a DPA claim 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. Such claims, however, will still be subject to the public interest defence.
In previous cases, judges have expressed doubts about allowing concurrent DPA and libel claims. For example, Mr Justice Eady in Quinton v Peirce said, “I am by no means persuaded that it is necessary or proportionate to interpret the scope of [the DPA] so as to afford a set of parallel remedies when damaging information has been published about someone, but which is neither defamatory or malicious”. The media industry will no doubt be concerned about the change of approach in Prince Moulay Hicham. Despite the Court’s appeal for careful case management in these claims, and its warning about the potential effect on free speech, this case could lead to a glut of DPA actions in respect of false but non-defamatory information (or where there is doubt over whether the ‘serious harm’ threshold for defamation claims is met). Of course, many claimants have been adding DPA claims to libel actions as a matter of routine, but this case highlights that they can be a key weapon in the armoury if the libel claim fails.
Client Alert 2017-088