James Stunt -v- Associated Newspapers Ltd

Reference: EWHC 695 (QB)

Court: High Court

Date of judgment: 6 April 2017

The facts of the case

Associated Newspapers Ltd (ANL), the publisher of the Daily Mail, the Mail on Sunday, and the MailOnline, is being sued by wealthy businessman James Stunt, the son-in-law of Formula 1 billionaire Bernie Ecclestone. Mr Stunt has brought claims against ANL for damages and/or an injunction for misuse of private information, harassment, as well as breaches and threatened breaches of the Data Protection Act 1998 (“DPA”), in relation to a series of articles published between March 2014 and November 2015. ANL issued an application for a stay of the claims under the DPA relating to unpublished material.

Application for a stay

S.32 of the DPA exempts journalists from many of the provisions of the Act. S.32 (1) of the DPA exempts the processing of personal data from the usual controls if it is for the special purposes of journalism, literacy and the arts and is undertaken with a view to the publication of journalistic, literacy or artistic material which the data controller reasonably believes is in the public interest. Pursuant to S.32 (4) of the DPA, the Court will stay proceedings brought under the Act relating to such unpublished material. The proceedings will be stayed until the material is published or the Information Commissioner makes a determination that the material does not fulfill the S.32 (4) criteria.

Counsel for Mr Stunt resisted the stay of proceedings stating that S.32 (4) was not compatible with the Data Protection Directive (the “Directive”). Article 9 of the Directive allows member states to derogate from the provisions of the Directive, to reconcile Article 8 rights to privacy with Article 10 rights to freedom of expression under the European Convention of Human Rights (“ECHR”), but only as far as necessary. Counsel for Mr Stunt argued that S.32 (4) was not required, as the necessary balancing exercise between Article 8 and 10 is contained in S.32 (1) of the DPA.

Counsel for ANL argued that S.32 (4) was an important part of the balancing exercise between Article 8 and 10, as it regulated the ability to impose a prior restraint on the publication of new journalistic material. Counsel for ANL relied upon Hansard extracts recording the discussions in the House of Lords on S.32 (4) during the passage of the DPA bill through the Houses of Parliament.

Decision

Popplewell J concluded that S.32 (4) was intended to be an important part of the balancing exercise between the privacy rights safeguarded in the Directive and the Article 10 rights of freedom of expression for journalistic purposes. It was clear from the Hansard extracts and the clear wording of S.32 (4) that it was intended to be an important provision of the substantive balancing exercise. Parliament plainly considered that a higher degree of protection was required in relation to unpublished material. In considering whether the pre-publication restriction contained in S.32 (4) fell within the margin of appreciation allowed by the Directive, it was material that S.32 (4) only applied to claims under the Act. Privacy rights under the ECHR are also protected in domestic law by private law rights of confidentiality, privacy and freedom from harassment. S.32 (4) is compatible with Article 9 of the Directive, as it falls within the margin of appreciation afforded to the UK Parliament to protect Article 10 ECHR rights.

Comment

The Court correctly decided that S.32 (4) is necessary to properly balance the privacy rights of individuals with the freedom of expression rights of journalists. Journalists have a vital public service remit and it is important that they are not thwarted in their news reporting by a wealthy elite. A disapplication of S.32 (4) would have had a chilling effect on investigative journalism which often involves acquiring and retaining personal data over a long period of time before a story is published.

Mr Stunt was refused permission to appeal by Popplewell J but he may renew his application for permission to appeal to the Court of Appeal.