Stunt v Associated Newspapers Ltd [2018] EWCA Civ 1780 is a dispute between the Daily Mail, Mail on Sunday and Mail Online, and the eye-wateringly rich former son-in-law of Berne Ecclestone about coverage of the latter by the former. Simply googling the claimant’s name and seeing the Mail Online headines gives some idea of why he might find that coverage less than flattering. It is, in short, a dispute where most people would like both sides to lose.Happily, thanks to the Court of the Appeal, they have. Both sides now have to fund a reference to the CJEU about the compatibility of section 32(4) of the Data Protection Act 1998 (still alive and kicking for these purposes) with Directive 95/46/EC, and the considerable delay built into that process. The reference was made because the Court split two to one (Sir Terence Etherton MR and Macfarlane LJ against Sharp LJ) on whether the stay mechanism imposed by section 32(4) was consistent with Article 9 of the Directive (freedom of expression rights) and Article 22 (effective remedy rights). At first instance, Popplewell J had found the provision to be a permissible implementation of the Directive (see here).
Section 32(4) requires a court to stay substantive DPA proceedings where the personal data to which they relate are being processed only for the special purposes (e.g. journalism) and with a view to publication. The stay remains in place until the Information Commissioner has determined whether the personal data was in fact being processed only for the special purposes or was not being processed with a view to publication: section 45. Litigation about section 32(4) has been relatively limited (but see here) but the terms of it have operated, as they were undoubtedly intended to, as a considerable disincentive on bringing DPA proceedings against the press.
Given that the issue has been referred it is unnecessary to expend much space on the respective reasons why the Court of Appeal indicated a split of views. The majority (at [87]-[100]) would have upheld the judge on the basis of a wide margin of appreciation available to the UK on the terms of implementation, and the concerns of Parliament in structuring section 32 in the way it did were legitimate and reflective of Strasbourg jurisprudence. In essence, the majority felt that the UK’s prioritisation of free speech rights over privacy/data protection rights in this context was a judgment it was entitled to make. A procedure was available to deal with disputes, which gave a right of appeal (albeit not to the data subject) and the possibility of judicial review.
The minority view (at [75]-[86]) placed greater emphasis on the need to give free speech and privacy rights equal weight and the absence of judicial scrutiny. There was scepticism of the Commissioner’s role, and the absence of an ability directly to weigh the two rights in a balance. Section 32(4) went beyond the requirement in Article 9 that its terms be “necessary” to reconcile the rights. The minority view also thought there was a strong argument it contravened Article 22 because they prevented access to remedies.
It will, of course, be for the CJEU to give the definitive view on the balance of the arguments.
That does not mean that those interested in the application of section 32 (materially retained in the 2018 Act) can ignore the Court of Appeal decision, because it also contains a unanimous section interpreting the scope of section 32(4). The issue was whether the imposition of the stay was conditional on the present or past processing of hitherto unpublished data with a view to future publication, or by reference to an intention to publish different journalistic material irrespective of whether or not that journalistic material contains the personal data already published: at [57].
The Court adopted a narrow and purposive construction of section 32(4) (disagreeing with the Commissioner, intervening, and agreeing with Associated Newspapers), whilst accepting that the literal wording suggested a wider view. It accepted the submission (at [64]) that a section 32(4) stay could not be imposed where the DPA claim was made in respect of processing of data in the form of publication of journalistic material, and in respect of the processing of that data which culminated in that publication. In short, the Court agreed with the observation in Campbell v Mirror Group Newspapers [2002] EWCA Civ 1373 at [115] that once publication occurs the stay ceases to be effective. (It appeared to disapprove of the recent contrary interpretation given by Warby J in Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB).)
The Court of Appeal considered the narrower approach to be consistent the aim of preventing the DPA being used to stifle stories pre-publication, that it was more consistent with the Hansard material, and that some support could be drawn from the slightly different wording used in section 176 of the 2018 Act. In any event, it held, the wider literal wording would need to be read down on ordinary principles of EU law to ensure that section 32(4) complied with Article 9 in only going so far as “necessary” to reconcile the competing rights: at [72]-[73].
The different aspects addressed by the Court of Appeal means that to understand how section 32 operates it will be necessary to have both this judgment and the future judgment of the CJEU. As the Court noted, its judgment appears consistent with the wording of the 2018 Act; but the CJEU may nonetheless require a considerable rethink.
Christopher Knight