Investigative journalism has won a significant victory in the High Court, defeating an attempt by a wealthy businessman to use data protection law to stop stories being published about him.
Regional papers should be reassured by the decision, which reaffirms that newspapers should not be restrained prior to publication. Had the Court gone the other way, the decision could have allowed the subjects of repeat stories to more proactively seek to limit reporting.
Data protection is fast becoming the weapon of choice for claimants seeking to stop, remove or amend articles to which they object. Regular readers of the Law Column will recognise that this is the second important case in this area in almost as many weeks.
The risk of such claims increased in 2015 when the courts found that claimants in data protection claims can claim for distress as well as actual damage.
The claimant in the most recent case was James Stunt, a wealthy businessman who in 2011 married Petra Ecclestone, daughter of Bernie Ecclestone, the former chief executive of the Formula One Group.
Mr Stunt had for many years complained of publication of various articles about him, including his appearances in public and business activities.
Attempting to draw a line, Mr Stunt issued proceedings against Associated Newspapers, publishers of the Daily Mail, Mail on Sunday and Mail Online, claiming damages and/or an injunction for misuse of private information, harassment and breaches and threatened breaches of the Data Protection Act (DPA).
Importantly, Mr Stunt was not just asking for compensation for alleged breaches, he was asking the Court for an order that the publisher cease processing his personal data and destroy the personal data in its possession. Meaning that the publisher would not be able to retain unpublished material it held with a view to future publication.
The matter before the Court was not a full determination on the facts, but whether the proceedings should be stayed in accordance with Section 32(4) of the DPA, a technical provision which allows for data protection proceedings to be stayed where the data concerned is held for future journalistic purposes.
Mr Stunt argued that the provisions allowing for a stay were incompatible with the EU Directive on Data Protection and therefore, that the claim should be allowed to proceed.
It is well established that the private rights of individuals are adequately secured by the ability to sue for damages after publication and that any prior restraint would pose a threat to freedom of expression.
The courts have also recognised that the speed at which journalism progresses makes it impractical to comply with many of the data processing principles and conditions. Further, that any restraint on such processing would potentially have a severe impact on press freedom and therefore its ability to act as a public watchdog.
The Court therefore recognised that if it were to intervene prior on data protection grounds, there was a real risk that the whole journalistic process would become impaired and inhibited.
It further recognised that investigative journalism often requires not just the acquisition, but the retention of data over a period time for use in a number of stories. The process would be thwarted if the subject of the story had access to the detailed direction of the story.
Further, the mere existence of such a right would implement the “chilling effect“. Accordingly, the Court found in favour of Associated Newspapers.
Where a line has been crossed, claimants can still claim in harassment, privacy, defamation and data protection. This decision reaffirms that they can’t restrict the press before publication.