High Court to consider Data Protection Act bid to halt reporting of corruption allegations

February 10th, 2014

Can the Data Protection Act 1998 (“DPA”) be used to prevent a respected NGO from reporting allegations of corruption by a multi-billion dollar international mining conglomerate?  That is the stark question posed by Steinmetz and others v Global Witness Limited, a recently issued High Court DPA Claim. 

Depending on which side of the litigation you are on, the Claim is an orthodox, if novel, attempt to stop the reporting of unfounded and damaging allegations of corruption brought by individuals whose names have been mentioned in accounts of those allegations.  Or an abusive attempt to prevent legitimate, public interest reporting, which threatens to censor the investigative and reporting activities of a vast swathe of NGOs.  

The Claim has been brought against the NGO Global Witness by four individuals reportedly associated with BSG Resources Limited (“BSGR”), a mining conglomerate whose interests include 50% of the Simandou iron ore reserve in Guinea.  Global Witness is a Nobel-prize nominated organisation which investigates and reports on natural-resource related conflict and corruption around the world.  Since November 2012, it has reported allegations that BSGR’s share in the Simandou reserve, one of the largest and most valuable in the world, was obtained by corruption.  These corruption allegations are currently being investigated by the Government of Guinea and by a US Federal Grand Jury.

The four Claimants are individuals who claim links with BSGR, and have been named by Global Witness in its reporting on the Guinea corruption allegations.  They include Beny Steinmetz, reported by the international media to be the founder of BSGR.  The four have made subject access requests under s. 7 DPA to obtain any personal data about them which is being held by Global Witness, have complained to the Information Commissioner (“ICO”) about non-compliance with their requests, and have now issued proceedings making various DPA claims against Global Witness, seeking declarations, disclosure, deletion of personal data and damages. https://www.bsgresources.com/bsgr-guinea/bsgr-guinea-analysis-reports/claim-filed-against-global-witness/

If successful, the Claim would prevent Global Witness from continuing to investigate and to report on the corruption allegations in connection with BSGR, and indeed from investigating and reporting on any similar allegations in the future.  The relief sought from the Court includes, in particular: 

          An order under s. 7(9) DPA that Global Witness discloses all of the personal data held about the Claimants.  Mr Steinmetz maintains that any data relating to BSGR is necessarily his personal data, and similar but less expansive claims are maintained by the other Claimants. 

          An order under s. 10 DPA that Global Witness ceases to process any of the Claimants’ personal data (which would mean, on the Claimants’ case, that it could not report any allegations about BSGR).  This relief is founded, in part, upon an allegation that the data was obtained from a person or persons who were not authorised to provide it and so invites the Court to investigate Global Witness’s sources. 

          An order pursuant to s. 14 DPA that Global Witness rectifies, blocks, erases or destroys data held which the Court is satisfied is inaccurate.  This claim seeks to use the DPA in effect to mimic a claim for libel, inviting the Court to make findings on the truth of the corruption allegations reported by Global Witness.  

          Damages for distress etc. caused to the Claimants.

For its part, Global Witness maintains that the Claim has been brought for collateral and illegitimate purposes and is an unwarranted attack on its freedom of expression.

Section 32 DPA exempts from each of the provisions relied upon by the Claimants data which are processed “only for”  “journalistic purposes”.   So a similar claim could not be maintained against an organisation like a newspaper which was engaged only in journalistic activities.  But the Claimants will presumably contend that because Global Witness is not a journalistic organisation but also engages in, for example, campaigning activities, s. 32 does not apply to their personal data which it holds.  If that is correct, the reporting activities not just of Global Witness but of a whole range of NGOs who campaign as well as engage in what they regard as public interest reporting could be subject to similar attack in reliance upon the DPA. Global Witness argues that it is not correct, and will rely upon the s. 3 Human Rights Act 1998 duty to interpret s. 32 DPA in a manner which is compatible with its freedom of expression.  So the Claim raises the stark issue of how the balance is to be struck under the DPA between the privacy rights of the Claimants and the freedom of expression of Global Witness.  Global Witness intends to apply to stay the proceedings pursuant to s. 32(4) DPA in a little-known  procedure which would require the ICO to decide on the application of s. 32 to the disputed data.  Other defences pursued by Global Witness also rely upon its right to freedom of expression under Article 10 ECHR.

Section 32 DPA is a relatively unexplored provision so far as UK courts and tribunals are concerned.  But it was subject to the detailed consideration by the Leveson Inquiry, which has in turn resulted in the ICO taking a close interest in its application.  The ICO is proposing to issue guidance to media organisations on their reliance upon s. 32:

https://ico.org.uk/news/latest_news/2014/~/media/documents/library/Data_Protection/Research_and_reports/data-protection-and-journalism-a-guide-for-the-media-draft.pdf The outcome of the Global Witness litigation will no doubt have a significant influence on the position ultimately adopted by the ICO.

Even if the Claim is ultimately unsuccessful, the prospect of expensive High Court litigation against individuals with deep pockets could have a chilling effect on the activities of NGOs like Global Witness.  It remains to be seen how the Courts and the ICO will react to what Global Witness argues to be an abuse of the DPA in order to attack legitimate, public interest investigation and reporting which would be protected from such attack if carried out by a traditional news organisation.

Anya Proops of 11KBW represents Global Witness, instructed by Mark Stephens of HowardKennedyFsi

Jason Coppel QC

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