Stunt v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] EWHC 695 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ/16/0724 |
[2017] EWHC 695 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon. Mr Justice Popplewell
Case No: IHQ/16/0724
Philip Coppel QC & David Sherborne (instructed by Lee & Thompson LLP) for the Claimant
Antony White QC & Ben Silverstone (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 1–2 March 2017
Introduction
The main issue on this application is whether section 32(4) of the Data Protection Act 1988 ("the Act"), which provides in certain circumstances for an automatic stay of proceedings in respect of journalistic materials (amongst others), is incompatible with EU law.
The Defendant is the publisher of the Daily Mail, the Mail on Sunday, and the Mail Online. The Claimant is a wealthy businessman who in 2011 married one of the daughters of Bernie Ecclestone, until recently chief executive of the Formula One Group. The Claimant has for several years complained about the Defendant's publication of articles on various topics, including the Claimant's appearances in public and his business activities. The Claimant has also complained about the Defendant's acquisition, retention, and use of personal data.
Following correspondence in 2014 and 2015, the Claimant issued a claim form against the Defendant on 29 January 2016 and served Particulars of Claim on 12 February 2016. The Particulars of Claim identify 27 articles published by the Defendant between 8 March 2014 and 29 November 2015 of which complaint is made. The Claimant claims damages and/or an injunction for misuse of private information, harassment, and breaches and threatened breaches of the Act. The claims under the Act ("the DPA Claims") seek the following relief:
(1) compensation for past breaches of the Act under s.13;
(2) orders for compliance with data requests made under s.7 of the Act in 2014 and 2015;
(3) orders for compliance with requests under s.10 of the Act made in 2014 and 2015 to cease, or not to begin, processing personal data;
(4) orders under s.14 of the Act that the Defendant erase and destroy personal data and cease processing it.
Following consensual delays, the Defendant issued an application for a stay of proceedings under s. 32(4) of the Act by an application notice dated 16 December 2016.
Section 32(4) requires the Court to stay proceedings if two conditions are fulfilled. It is common ground that those two conditions are fulfilled, and that the Court would be required to impose a stay on a literal interpretation of the section. The Claimant resists a stay on the grounds that s. 32(4) is incompatible with Articles 9, 22 and 23 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 ("the Directive") which the Act was intended to implement; and/or that s. 32(4) is incompatible with Articles 7, 8, and 47 of the Charter of Fundamental Rights of the European Union ( 2012/C 326/02) ("the Charter"); and that the Court should accordingly disregard s. 32(4) by application of the principle in Marleasing SA v La Comercial Internacional de Alimentacion SA ( Case C-106/89) [1990] ECR I-4135 ("the Marleasing principle"); alternatively by application of the principle in Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs intervening) [2015] EWCA Civ 33 [2016] QB 347 ("the Benkharbouche principle").
The Defendant submits that there is no incompatibility with the Directive or the Charter. Alternatively if there is any such incompatibility, s. 32(4) cannot be disapplied either under the Marleasing principle or the Benkharbouche principle.
The Relevant Legal Framework
The Directive
Recitals 17 and 37 to the Directive state (insofar as relevant):
"(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 9 provides as follows:
"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 13(1) provides that:
"Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6(1), 10, 11(1), 12 and 21 when such a restriction constitutes a necessary measures [sic] to safeguard… (g) the protection of the data subject or of the rights and freedoms of others."
The Directive therefore expressly recognises that the data protection rights for which it provides may come into conflict with the right of freedom of expression, in the field of journalism (amongst others), guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"); and that a balance must be struck between those conflicting rights in implementing the Directive in national law. Section 32(4) comes in part of the Act designed to balance those conflicting rights.
The European case law has emphasised the importance of both sets of rights. In Schrems v Data Protection Commissioner (Case C-362/14) [2016] QB 527, the Court of Justice for the European Union said of the data protection rights:
"39. It is apparent from article 1 of Directive 95/46 and recitals (2) and (10) in its Preamble that that Directive seeks to ensure not only effective and complete protection of the fundamental rights and freedoms of natural persons, in particular the fundamental right to respect for private life with regard to the processing of personal data, but also a high level of protection of those fundamental rights and freedoms. The importance of both the fundamental right to respect for private life, guaranteed by article 7 of the Charter, and the fundamental right to the protection of personal data, guaranteed by article 8 thereof, is, moreover, emphasised in the case law of the court: see judgments in College van burgemeester en wethouders van Rotterdam v Rijkeboer (Case C-553/07) [2009] ECR 1–3889, para 47; the Digital Rights Ireland case [2005] QB 127, para 53; and the Google Spain SL case, paras, 53, 66, 74 and the case law cited."
In The Sunday Times v United Kingdom (No 2) (1992) 14 EHRR 229, the European Court of Human Rights ("ECtHR") summarised the importance of the protection of freedom of expression by the media in these terms at paragraph 50:
"(a) Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph 2 of Article 10 (art. 10–2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.
(b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the "interests of national security" or for "maintaining the authority of the judiciary", it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog".
(c) The adjective "necessary", within the meaning of Article 10 para. 2 (art. 10–2), implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10 (art. 10)."
The Charter
The Charter confers rights amongst other things to respect for private and family life (Article 7), the protection of personal data (Article 8), freedom of expression and information (Article 11) and to an effective remedy (Article 47).
Article 52(1) provides for the basis on which such rights can be restricted, as follows:
"Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations...
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