The Court of Appeal navigates UK GDPR fairness and accuracy principles
In this recent case, the Court of Appeal grappled with whether there was a substantial distinction between claims alleging inaccurate personal data processing and unfair personal data processing. The Court of Appeal found that there was such a distinction, and held the processing was unfair. Whilst turning on facts particular to the newspaper industry, nonetheless the decision has important implications for data protection claims more widely.
Background
In June 2023, the Daily Mail published an article headlined “Labour repays £100,000 to sex pest donor”. The article contained two photographs of the claimant, Mr Dale Vince, at a Just Stop Oil protest immediately below the headline. However, the text of the article set out that the “sex pest” referred to a Mr Davide Serra. The remainder of the article contained brief references to Mr Vince and his attendance at the Just Stop Oil protests and its link to the wider Labour government. The caption underneath the photographs also set out that the photographs were of Mr Vince (i.e. not Mr Serra).
Mr Vince initially pursued a claim against the Daily Mail’s owner, Associated Newspapers, in defamation. This claim was struck out by HHJ Lewis on the basis that a publication must be considered in its entirety i.e. including article, headline, photos and captions for the purposes of assessing defamation. HHJ Lewis held that upon reading the entirety of the article, it was evident to a reasonable reader that the “sex pest” in question was not Mr Vince.
The claim and first instance judgment
Mr Vince then brought a fresh claim against Associated Newspapers for unfair data processing under article 5(1)(a) of the UK GDPR. He pleaded that the article, and in particular the print format of the article, created a misleading impression on those receiving his personal data (i.e. readers of the article) and that he had been accused of sexual harassment; and this impression had an unjustified adverse impact on him. Mr Vince claimed that he had suffered non-material harm to his reputation and material harm in terms of his legal fees.
The High Court struck out the claim on application from Association Newspapers, on the basis that:
- bringing this fresh claim, instead of bringing it as a part of the defamation claim, was an abuse of process as a determination on these facts had already been reached, and
- his data had been fairly processed because when considered in its entirety, the article did not mislead a reasonable reader. The judge noted the importance of the accuracy principle (Article 5(1)(d)) in assessing whether there has been a fair processing of data.
Mr Vince appealed.
The Appeal
The Court of Appeal reversed the High Court’s decision and granted Mr Vince summary judgment for damages to be assessed.
LJ Swift held it appropriate to apply the Henderson v Henderson [1843] principles. In exercising the required “broad, merits-based judgment and taking account of the public and private interests involved and all the facts of the case”, LJ Swift found that Mr Vince was not abusing the court’s process. The judge cited a number of factors, including that the fair processing was novel and Associated Newspapers was a seasoned litigant who “could hardly be regarded as being oppressed by the need to defend consecutive proceedings, for which it can be properly compensated in costs if it wins”.
Turning to the unfair processing, LJ Swift found that, whilst the article may not have been inaccurate, it was nonetheless misleading. People reading casually or no further than the headline and pictures would have been led to believe that Mr Vince was the alleged “sex pest”. This constituted a breach of the Editors Code of Practice.
In considering whether this was unfair for the purposes of UK GDPR, LJ Swift found that:
“the answer to this question can be obtained from the Editors’ Code of Practice”
The Editors’ Code of Practice (the Code) which Associated Newspapers was bound by, was held to be the relevant privacy code to which the Court was bound by section 12 of the Human Rights Act 1998 (the right to freedom of expression). The Code required editors to ensure that articles were accurate and not misleading.
LJ Swift further found that as the articles were misleading, they were unfair. LJ Swift refused to lay down a generally applicable test, but nonetheless gave guidance as to the approach he had followed:
Undoubtedly, it can be said that fairness is an autonomous concept under the UK GDPR, and the data controller ought not to deal with a data subject’s data in a way that is unfair to the data subject. The data subject’s reasonable expectations will be relevant at least when they have a relationship with the data controller (as, for example, in Johnson, or between social media platforms and their users, but see also the ICO Code mentioned at [61] above). Fairness obviously also implies a balance which will be influenced by the circumstances of the data usage, the interests of the data subject and the data controller, the public interest and whether the processing is proportionate to any harm caused.
Comment
As LJ Swift stated, Mr Vince’s claim for unfair processing was novel and it will of course turn on its own facts, with the judge emphasising the importance of the context of the data processing. Here, the judgment turned heavily on the Editor’s Code of Practice where there were explicit, distinguishable requirements for articles not to be inaccurate or misleading.
Nonetheless, the judgment gives helpful guidance on how the courts will approach the question of fairness and the inter-connection between the fairness and accuracy principles In this case, the Court drew a clear distinction between accuracy and fairness, which are often conflated in data claims, highlighting that in certain contexts, personal data can be accurate yet still be unfairly processed.
Whether the courts are likely to find such a distinction in other contexts seems unlikely. However, it would not be surprising if the judgment encourages claims in which such arguments are pursued or encourages claimants to bring back claims that were previously rejected or dismissed. It would also not be too surprising if Associated Newspapers appeals to the Supreme Court.
