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High court judge: Data protection isn't defamation substitute

Act does not have your back

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The Data Protection Act should not be a backup plan in failed defamation cases, a High Court judge has said. Mr Justice Eady has rejected a claim that an allegedly libellous statement was also a breach of the privacy law.

The Data Protection Act (DPA) regulates the sharing of personal data, and says that someone processing personal data must make sure the processing is fair and the data accurate.

Christopher Quinton was a Conservative candidate for election in 2007 to a local council seat in Oxfordshire. Robin Pierce is his Liberal Democrat rival and the sitting councillor.

Quinton sued Pierce over claims in election leaflets relating to his attendance at various meetings relating to planning policy in the area, and over Pierce's claims about Quinton's views on planning.

As well as claiming that Pierce was guilty of publishing injurious falsehood, Quinton claimed that the election leaflets breached the DPA. He said that the information published was personal information, and that therefore there was an obligation under the Act for it to be accurate when processed by Pierce.

That argument took the case "into largely uncharted territory", said High Court judge Mr Justice Eady.

The fourth principle of the DPA says: "Personal data shall be accurate and, where necessary, kept up to date."

In order to qualify for protection, information must qualify as 'data' under the Act, and must be being 'processed' in a way covered by it. The people doing the processing must be 'data controllers' under the Act's definitions.

Mr Justice Eady said that the information did qualify for protection.

"'Data' in this context means information which is being processed or is recorded with the intention that it should be processed by computerised means. 'Personal data' relates to an identifiable living individual," he said in his ruling. "I am prepared to proceed on the assumptions that the offending material was personal data and that [Pierce and his election agent] were data controllers."

The judge ruled, though, that while the information was covered by the DPA, it was not processed in a way that broke the law. He had already ruled on the issue of injurious falsehood that Pierce had not significantly misrepresented any facts and had not acted out of malice.

"I would not accept (assuming the statute to apply to the leaflet) that there has been an infringement of either of the [DPA] principles requiring accuracy and fairness," he said. "As to the former, I see no reason to apply different criteria or standards in this respect from those I have applied when addressing the tort of injurious falsehood."

"One suggestion was that, in order to comply with the obligation to be fair, Mr Peirce should not have 'processed' this information without notifying Mr Quinton in advance," said Mr Justice Eady. "I decline, however, to interpret the statute in a way which results in absurdity. Plainly, it cannot have been the intention of the legislature to require electoral candidates to give their opponents advance warning each time reference is to be made to them in a document that happens to be computer generated."

Mr Justice Eady also outlined his opposition to the DPA being used as a backup plan for people suing for defamation or injurious falsehood.

"I am by no means persuaded that it is necessary or proportionate to interpret the scope of this statute so as to afford a set of parallel remedies when damaging information has been published about someone, but which is neither defamatory nor malicious," he said. "Nothing was cited to support such a far ranging proposition, whether from debate in the legislature or from subsequent judicial dicta."

"Still less am I persuaded that it is necessary or proportionate so to interpret it as to give a power to the court to order someone to publish a correction or apology when the person concerned does not believe he has published anything untrue."

See: The ruling

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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