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Law Column: Questions on the retention of journalistic materials


In the latest development in the tactical battle that is data protection, the Court of Appeal has referred questions relating to the journalistic exemption to the Court of Justice of the European Union (CJEU).

As readers may remember from previous Law Column discussion of the case, James Stunt, former son in law of Bernie Ecclestone, is suing in relation to various articles published about him in the Daily Mail, The Mail on Sunday and Mail Online.  Apparently frustrated with the continued coverage of his affairs, he issued proceedings in December 2015 claiming damages and/or an injunction for misuse of private information, harassment and breaches and threatened breaches of the DPA 1998.

The importance of the case is that Mr Stunt is not just asking for compensation for alleged past breaches, he is asking for an order that Associated News ceases processing his personal data and destroys the personal data it has concerning Mr Stunt in its possession. If Mr Stunt is successful, this would mean setting a precedent that a publisher might not be able to retain unpublished material it held with a view to future publication.

Asked to rule on a technical point of procedure attached to the journalistic exemption which can stay proceedings, at first instance the High Court ruled that section 32(4) of the Data Protection Act 1998 was not incompatible with EU law and that claims under the 1998 Act could be stayed so far as they related to as yet unpublished journalistic material. This decision appeared to be an important victory for journalism, confirming that data protection law may not be used to proactively restrict journalists prior to publication.

Not prepared to give up on the point, Mr Stunt appealed and the matter went to the Court of Appeal. The appeal concerned the proper interpretation of section 32(4) and its compatibility with EU law.

Although divided on whether the section contravenes EU law, the Court of Appeal was able to unanimously agree on the scope of the provision. It was necessary, the court said, to apply a narrow and purposive interpretation. This concurred with the position advocated by counsel for Associated News, who had submitted that a stay under section 32(4) could not be granted where proceedings were brought under the 1998 Act in respect of processing of data in the form of publication of journalistic material and the processing of that data which culminated in that publication.

However, unable to agree whether the provision contravenes EU law, the Court of Appeal referred that question to the CJEU. The Court will consider further submissions on the form and content of any such reference. In the meantime, according to usual procedure, the claim will be stayed.

Section 32(4) was also relied on by News Group in a High Court decision handed down in May 2018. Similar provision survives in section 176 of the Data Protection Act 2018, meaning that while the reference may take years, this case will continue to remain relevant.