Section 32 DPA: Resistance not Futile

March 6th, 2017

We have banged the drum on Panopticon to almost Phil Collins-like levels on theme of the growing utility of the Data Protection Act to media lawyers, but it would be foolish to pretend it can always produce an answer from nowhere in a traditional journalism context. The judgment in ZXC v Bloomberg LP [2017] EWHC 328 (QB) reminds us of that.

ZXC is someone who has been the subject of a published article by Bloomberg reporting on a law enforcement investigation into ZXC and into companies to which ZXC is connected. The article itself, published in late 2016, was not the first piece by Bloomberg to refer to ZXC and the investigation has been the subject of much press coverage. ZXC brought proceedings for an interim injunction to require the taking down of the most recent article, alleging that it constituted a misuse of private information and a breach of the DPA (specifically, section 10).

Garnham J dealt with the DPA argument in fairly, but understandably, swift terms. Bloomberg relied upon section 32 DPA as an absolute defence to its processing in the form of publication, and put evidence before the Court to show that it believed, on reasonable grounds, that publication was in the public interest. Garnham J had little hesitation in accepting that argument: at [56]-[60]. He held that ZXC could not show he was likely to overcome the section 32 defence and the DPA claim would fail. Interim relief was therefore refused.

Bloomberg, as a traditional publisher of journalistic articles, against a backdrop of repeated press coverage of the investigation, was on precisely the sort of strong ground section 32 DPA was intended to maintain. An important question around the implementation of the GDPR is, of course, whether the UK will adopt a similar approach (and the extent to which Article 85 allows it).

Unsurprisingly, the bulk of the argument and judgment was concerned with the misuse of private information claim, which also received (longer but still relatively) short shrift. The Court generally endorsed the approach of Nicol J in ERY v Associated Newspapers [2016] EWHC 2760 (QB) at [44]-[49] on the approach to be taken to interim injunctions in a section 12 HRA context.

Garnham J accepted that information in a law enforcement body document was private where no party to that document had sought for it to be published, and ZXC particularly opposed its publication: at [31]. The document itself was highly confidential, and ZXC was a businessman rather than someone courting publicity. He had not been arrested or otherwise the subject of public comment by the body and the document itself appeared to have been leaked in breach of confidence: at [34]. ZXC passed the first stage and his Article 8 rights were engaged: at [35].

However, at the second, balancing, stage the Court noted a number of factors which reduced the weight of those privacy concerns. ZXC had not complained about the earlier article, and the fact of investigation of him was clearly in the public domain more generally. He took nine days to complain, when it would have been read (and was reproduced) during that time, and the undoubted stress caused to his family was much more likely to be linked to the investigation rather than the article. ZXC provided no specific evidence and the article only informs readers of an investigation, not of guilt: at [41]-[46].

Adopting a careful balance-sheet approach, Garnham J then noted reasons why the Article 10 rights of Bloomberg were particularly strong. This was serious journalism, not ‘kiss and tell’. There had, very importantly, been no adverse reaction from the law enforcement body itself that its investigation would be prejudiced by publication. Naming ZXC in the article was a responsible decision which gave the article credibility. The weight was reduced by the fact that the information had come to Bloomberg through a breach of confidence and this was not a whistleblowing case, as the alleged wrongdoing was already being investigated: at [48]-[51].

In the circumstances, the Court held that the Article 10 rights of Bloomberg “comfortably” outweighed the Article 8 rights of ZXC.

Christopher Knight​

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