James Stunt v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr, Lord Justice McFarlane,Sir Terence Etherton |
| Judgment Date | 30 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1780 |
| Date | 30 July 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2017/1186 |
[2018] EWCA Civ 1780
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Popplewell J
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice McFarlane
and
Lady Justice Sharp
Case No: A2/2017/1186
and
Philip Coppel QC and David Sherborne (instructed by Benson Ingram Law LLP) for the Appellant
Antony White QC and Ben Silverstone (instructed by RPC Solicitors) for the Respondent
Gerry Facenna QC and Julianne Morrison (instructed by the Information Commissioner's Office) for the Intervener
Hearing dates: 19 and 20 June 2018
Judgment Approved
Sir Terence Etherton Mr, Lord Justice McFarlane and
This is an appeal from the order dated 6 April 2017 of Popplewell J in which he ordered a stay under section 32(4) of the Data Protection Act 1998 (“the DPA”) of certain claims made in these proceedings by Mr James Stunt (“Mr Stunt”), the appellant, under the DPA against Associated Newspapers Limited (“AN”), the respondent.
This appeal concerns the proper interpretation of section 32(4) and, in the light of its interpretation: (1) whether it strikes a permissible balance under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (“the Directive”) between rights to freedom of expression by the press and rights of privacy in the form of data protection rights, such rights being guaranteed by both EU law, under the Directive and the Charter of Fundamental Rights of the European Union (“the Charter”), and by the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”); (2) whether section 32(4) is incompatible with the right to an effective judicial remedy under EU law; and (3) if section 32(4) is found to be incompatible with EU law, what course of action the court is permitted to take by way of remedy.
By order of the court dated 18 May 2018 the Information Commissioner (“the Commissioner”) was given permission to intervene by way of both written and oral submissions.
Legislative and regulatory background
The structure and key provisions of the DPA, the Directive and the Charter are as follows. Other relevant provisions are quoted in Appendix 1 to this judgment.
The fundamentals of the Directive
The DPA was intended to implement the Directive. The title of the Directive states that it concerns “the protection of individuals with regard to the processing of personal data and on the free movement of such data”.
Recital (10) makes clear that the processing of personal data, which is the subject of the Directive, is protected by both Article 8 of the Convention and general principles of EU law:
“(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognized both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community;”
The Directive requires member states in their implementation of the Directive to provide for certain exemptions or derogations from the data protection rights conferred by the Directive. In particular, Recitals (17) and (37) recognise that conflicts may arise between the right to privacy in the form of protection of personal data and the right to freedom of expression, the resolution of which will require appropriately framed exemptions or derogations:
“(17) Whereas, as far as the processing of sound and image data carried out for purposes of journalism or the purposes of literary or artistic expression is concerned, in particular in the audiovisual field, the principles of the Directive are to apply in a restricted manner according to the provisions laid down in Article 9;”
“(37) Whereas the processing of personal data for purposes of journalism or for purposes of literary of artistic expression, in particular in the audiovisual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas Member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, …”
Article 1 of the Directive sets out its object. Article 1(1) is as follows:
“1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.”
Under Article 9 member states may only confer an exemption or derogation from personal data processing rights in the context of journalistic purposes or the purpose of artistic or literary expression where it is necessary to reconcile the right to privacy with the right to freedom of expression. It provides as follows:
“ Processing of personal data and freedom of expression
Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”
Article 22 of the Directive provides for the right of every person to a judicial remedy in respect of any breaches of personal data rights guaranteed by national legislation. It is as follows:
“ Remedies
Without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28, prior to referral to the judicial authority, Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.”
Article 23 of the Directive provides for the right of every person to compensation where they have suffered damage as a result of unlawful processing or a breach of domestic implementing legislation.
The Structure of the DPA
Mr Philip Coppel QC, counsel for Mr Stunt, outlined the following five core concepts inherent in the operation of the DPA. Neither Mr Antony White QC, for AN, nor Mr Gerry Facenna QC, for the Commissioner, criticised that summary.
First, the DPA is concerned with regulating ‘personal data’. The expression ‘data’ is defined in section 1(1) of the DPA as follows:
““data” means information which—
(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,
(b) is recorded with the intention that it should be processed by means of such equipment,
(c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,
(d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; or
(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d);”
Secondly, the activity that the DPA regulates is the ‘processing’ of that personal data. The expression “processing” is defined in section 1(1) to cover a wide range of activities, as follows:
““processing”, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including—
(a) organisation, adaptation or alteration of the information or data,
(b) retrieval, consultation or use of the information or data,
(c) disclosure of the information or data by transmission, dissemination or otherwise making available, or
(d) alignment, combination, blocking, erasure or destruction of the information or data;”
Thirdly, the principal person who is subject to the majority of obligations in relation to personal data processing is the ‘data controller’ who is defined in section 1(1) as follows:
““data controller” means, subject to sub-section (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;”
Fourthly, in their processing of personal data, data controllers are required by section 4(4) of the DPA to comply with the eight ‘data protection principles’ set out in Part I of Schedule 1 to the DPA. Those principles are as follows:
“1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or...
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