Defamation and data protection: hand-in-glove

January 27th, 2017

Suppose you publish a statement about me to which I object. Can I sue you for both defamation and data protection breaches based on the same set of facts? Or should that sort of ‘doubling up’ be prohibited as a disproportionate attempt to achieve the same objective in different ways?

In Quinton v Peirce [2009] EWHC 912 (QB), Eady J said of one such attempt that he was “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 nor malicious”. So, some have argued, if your claim is going to fail under the Defamation Act, you can’t use the DPA to try and get round that. The DPA is not some sort of defamation weapon with a lower threshold.

Other (eminent) commentators have observed that, in some cases at least, defamation and DPA claims can be complementary: see for example my long-ago post about the judgment of Tugendhat J in Law Society v Kordowski [2011] EWHC 3185 (QB).

In a judgment handed down this morning, the Court of Appeal has confirmed the latter approach. In suitable cases, defamation and DPA claims can be brought in parallel.

HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing Limited [2017] EWCA Civ 29 involved an article about the Moroccan Prince published in Arabic about his alleged machinations and disloyalty to the Moroccan regime. A defamation claim was brought. An application for strike-out/summary judgment succeeded (on grounds of meaning) in respect of parts of the claim. An application to amend the claim, a further judgment from the High Court, appeal and cross-appeal ensued.

Today’s judgment of the Court of Appeal is here: Prince-Moulay-v-Elaph

The judgment is important on two scores. One involves the establishment of meaning under the Defamation Act: in a nutshell, while imputations of disloyalty are not necessarily defamatory (you could, for example, display disloyalty on honourable grounds, by agitating for reform), but they can be. Here, the article “was capable of being regarded by the public generally as an attack on the Prince’s integrity and character such as would seriously harm his reputation in the eyes of reasonable people” (Simon LJ at [37]).

The second important point concerns the potential symbiosis between defamation claims and DPA claims to which I refer above.

Elaph had objected to the Prince’s application to amend his defamation claim so as to weave in a DPA element, submitting that “the case is either a defamation case or it is nothing; and the notion that factual inaccuracies in the context of political debate should be the subject of a DPA claim would have far-reaching consequences”.

On the other hand, the Prince submitted that “although the libel and DPA claims were distinct, the weaker the libel claim, the more important it was that the Prince would be able to advance the DPA claim”.

The Court of Appeal allowed the DPA claim to be introduced in parallel with the defamation claim. It could “see no good reason of principle why a claim under the DPA cannot be linked to a defamation claim, and why it should not be added by amendment if the test for amendment is otherwise met” (per Simon LJ at [44]).

Some observations:

  1. Claimants can in principle deploy defamation and DPA claims hand-in-glove. There is not necessarily a problem in deploying two weapons to achieve a similar end.
  2. There may, however, be a problem if there is held to be a disproportionate doubling up, i.e. of one weapon seems to add nothing useful to the other.
  3. So careful pleading is needed. See [44] of today’s judgment:

“In the present case Elaph contend that the article is not defamatory of the Prince. If that defence succeeds the DPA claim may found an appropriate alternative means of redress, although §8 of the Amended Particulars of Claim, which treats the damage arising under the two claims as effectively the same, will require some further thought by those advising the Prince”.

  1. Today’s judgment seems to me to illustrate an increasingly sophisticated judicial engagement with privacy. See Simon LJ’s approval at [43] of the Kordowski point that “the different causes of action are directed to protecting different aspects of the right to private life: the relevant provisions of the DPA include the aim of protection from being subjected unfairly and unlawfully to distress”. In other words, privacy and reputation are multi-faceted things, and different legal weapons can protect them in different ways.

Robin Hopkins @hopkinsrobin

Comments are closed.