Stunt v Associated Newspapers Ltd

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:

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.

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 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 may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

Article 52(3) states that insofar as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR.

As the Court of Appeal confirmed in Vidal-Hall v Google Inc [2016] QB 1003 at [99], the Charter does not expand the rights conferred by EU law. The rights to protection of data conferred by Article 8 of the Charter are based on the rights provided under the Directive and do not extend them.

Part II of the 1998 Act confers certain rights on data subjects. These include the rights relied on in the claim in these proceedings under section s 7, 10, 13 and 14.

Section 7(1) provides that, subject to certain specified limitations and conditions:

“…an individual is entitled--

(a)

to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,

(b)

if that is the case, to be given by the data controller a description of--

(i)

the personal data of which that individual is the data subject,

(ii)

the purposes for which they are being or are to be processed, and

(iii)

the recipients or classes of recipients to whom they are or may be disclosed,

(c)

to have communicated to him in an intelligible form--

(i)

the information constituting any personal data of which that individual is the data subject, and

(ii)

any information available to the data controller as to the source of those data, and

(d)

where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.”

Section 7(9) provides for a means of enforcing a request under s 7. By this subsection “[i]f a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request”.

Section 10 provides for a right to prevent processing likely to cause unwarranted damage or distress. By s. 10(1) an individual is entitled, again subject to certain limitations and conditions:

“…at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a)

the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b)

that damage or distress is or would be unwarranted.”

Enforcement of the requirements in such a notice is provided for by s 10(4) which states that

“[i]f a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit”.

By s. 13(1) “[a]n individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”. The Court of Appeal in Vidal-Hall v Google held that compensation is also recoverable where an individual does not incur damage, but suffers distress, as a result of such a contravention.

Among the contraventions which may give rise to such compensation are breaches of s. 4(4) which provides that, subject to certain exceptions, “it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller”. The data protection principles are set out in Schedule 1 to the Act.

Section 14 provides for a right of rectification, blocking, erasure and destruction of personal data. By s. 14:

“(4)

If a court is satisfied on the application of a data subject—

(a)

that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and

(b)

that there is a substantial risk of further contravention in respect of those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

(5)

Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.”

Section 32 contains exemptions from certain provisions of the Act in respect of personal data processed for the “special purposes”, which are defined in s. 3 as “any one or more of the following- (a) the purposes of journalism, (b) artistic purposes, and (c) literary purposes”.

Section 32 provides:

“(1)

Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if--

(a)

the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,

(b)

the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)

the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.

(2)

Subsection (1) relates to the provisions of--

(a)

the data protection principles except the seventh data protection principle,

(b)

section 7,

(c)

section 10,

(d)

section 12, and

(e)

section 14(1) to (3).

(3)

In considering for the purposes of subsection (1)(b) whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which--

(a)

is relevant to the publication in question, and

(b)

is designated by the [Secretary of State] by order for the purposes of this subsection.

(4)

Where at any time ("the relevant time") in any proceedings against a data controller under section 7(9), 10(4), 12(8) or 14 or by virtue of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed--

(a)

only for the special purposes, and

(b)

with a view to the publication by any person of any journalistic, literary or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller,

the court shall stay the proceedings until either of the conditions in subsection (5) is met.

(5)

Those conditions are--

(a)

that a determination of the Commissioner under section 45 with respect to the data in question takes effect, or

(b)

in a case where the proceedings were stayed on the making of a claim, that the claim is withdrawn.

(6)

For the purposes of this Act "publish", in relation to journalistic, literary or artistic material, means make available to the public or any section of the public.”

Section 45 provides for the mechanism by which the Commissioner makes a determination in relation to data processed for the special purposes, as referred to in s 32(5). Section 45(1) provides:

“Where at any time it appears to the Commissioner (whether as a result of the service of a special information notice or otherwise) that any personal data--”

(a)

are not being processed only for the special purposes, or

(b)

are not being processed with a view to the publication by any person of any journalistic, literary or artistic material which has not previously been published by the data controller,

he may make a determination in writing to that effect.”

It is apparent that s. 32(1) lays down four cumulative conditions for exemption from the data protection requirements enumerated in subsection (2). They are that:

The scope of s. 32(4) is more limited in a number of ways. First it provides for a stay only where there is a claim that the data is being held or used with a view to publication of new journalistic material (subparagraph (b)). It is therefore limited to material intended to be used in future publication which is new “news”. Once material no longer fulfils that criterion it falls outside the scope of s. 32(4) and can be the subject matter of ongoing proceedings.

Secondly the threshold for the application of s. 32(4) is not fulfilment of all four conditions which comprise the subject matter of s. 32(1), but only the first two conditions. Section 32(4) involves no inquiry into whether there is a reasonable belief that the publication would be in the public interest, nor whether in all the circumstances what would otherwise be a breach is incompatible with the journalistic artistic or literary purposes (s. 32(1)(b) and (c)).

Thirdly s. 32(4), unlike s. 32(1) does not involve any objective assessment of whether the conditions are or are not met, but is fulfilled merely by a claim on the part of the data controller that the first two conditions are met.

It is this last element which is policed by the Commissioner. Section 45 enables the Commissioner to determine that (a) the personal data is not being processed only for the special purposes and/or (b) that it is not being processed with a view to publication of new journalistic, literary or artistic material. In either event the claim by the data controller necessary to fulfil the two conditions in section 32(4) will be determined to be unfounded and the stay of proceedings will be lifted by virtue of s. 32(5). This is therefore an objective check on what is a subjective trigger for the stay in s. 32(4) requiring merely a claim by the data controller that the necessary two conditions are met. It is not a delegation to the Commissioner to decide those questions for all purposes, but only for the purposes of the stay under s. 32(4). In particular a s. 45 determination by the Commissioner does not bind the court in any subsequent proceedings once a stay is lifted when considering the same two conditions which arise under section 32(1).

The process by which a data subject may challenge the claim by the data controller to fulfil the two conditions in s. 32(4) is as follows:

Accordingly a section 45 determination may come about by:

If a special information notice is issued, section 48(1) provides that at that stage the recipient of the special information notice may appeal to the First Tier Tribunal, which decides the appeal on a merit review basis: see s.49(1). The parties to the FTT appeal are the data controller and the Commissioner. The data subject has no entitlement to participate in the appeal although he may apply under Rule 9 of the FTT Rules to be joined. There is a right of appeal to the Upper Tribunal against the FTT’s decision on a point of law. There is a permission based right of appeal from the Upper Tribunal to the Court of Appeal. The data subject has no right of appeal against a decision by the Commissioner not to serve the data controller with a special information notice. Assuming that the data subject is made aware of that decision, the only recourse would be for the data subject to apply for judicial review of the Commissioner’s decision.

If the Commissioner makes a s. 45 determination, the data controller has a right of appeal by virtue of s. 48(4), to the FTT and beyond in a similar appeal process. Any lifting of the stay under s. 32(5) will not occur until the s. 45 determination “takes effect”, which presumably means after appeal rights have been exhausted.

Save for rare cases when it is obvious from the data controller’s voluntary response that its s. 32(4) claim is unfounded, it seems likely that in most cases the Commissioner would not be able to, and would not want to, proceed to a s. 45 determination, namely that the data controller’s claim that the s. 32(4) criteria were fulfilled was unfounded, without having requested and obtained information from the data controller pursuant to a special information notice.

It follows that once a data controller has made a claim that the two conditions in s. 32(4) are fulfilled, the likely process which would have to be followed in order to bring about a lifting of the stay under s. 32(5)(a) would involve the following steps:

Throughout this process the data subject will have limited ability to participate.

The upshot is that once a data controller has made a claim that the two conditions in s. 32(4) are fulfilled, the data subject cannot compel the Commissioner to embark upon a s. 45 exercise, which if it takes place at all may well involve a lengthy process in which the data subject is largely a spectator, with the result that the stay is itself either permanent or of lengthy duration.

The starting point is that in giving effect to a Directive, Member States have a margin of appreciation in adopting domestic measures aimed at balancing fundamental rights of privacy with those of freedom of expression: see Criminal Proceedings against Lindqvist (Case C-101/01) [2004] QB 1014 at paragraphs 83-89; Mosley v UK [2012] EMLR 1 at paragraphs 108, 122. In the context of data protection rights, in Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (Case C C-73/07) [2010] All ER (EC) 213, Advocate General Kokott noted at 43 that:

“Strict application of the data protection rules could substantially limit freedom of expression. Investigative journalism would to a large extent be ruled out if the media could process and publish personal data only with the consent of, or in conformity with information provided by, the person concerned. On the other hand, it is obvious that the media may violate the right of individuals to respect for their private life. Consequently a balance must be found.”

The Advocate-General went on to describe the nature of the Member States’ wide discretion in implementing the Directive, as follows:

“……it must be concluded from the broad scope of the Data Protection Directive, which already reaches almost beyond the establishment of the internal market, that the Court, when striking a balance between conflicting fundamental rights in the context of the Directive, should in principle allow the Member States and their courts a broad discretion within which their own traditions and social values can be applied.”

The question in this case, therefore, is whether s. 32(4) forms part of the legitimate balancing of substantive privacy rights under the Directive with rights of freedom of expression under Article 10 of the ECHR, in accordance with Article 9 of the Directive, within the margin of flexibility legitimately permitted to a Member State. Article 9 of the Directive and Article 10 of the ECHR each provide that there may only be derogation from such rights so far as is necessary.

On behalf of the Claimant, Mr Coppel QC argued that s. 32(4) was not necessary as part of the Article 9 balancing process. The balancing of the rights of individuals to protection of private information with Article 10 journalistic rights was struck in the conditions set out in s. 32(1). The effect of s. 32(4) was not to address or qualify those substantive rights, but was a purely procedural provision which did no more than provide a potential block, or at best delay, on the determination of those rights. In support of the proposition that s. 32 (4) is a purely procedural provision, he relied upon the dicta to that effect by Lord Phillips MR in Campbell v MGN Ltd [2003] QB 633 at paragraphs 115 and 116.

On behalf of the Defendant Mr White QC argued that s. 32(4) is intended to involve substantive rights and is itself an important part of the balancing exercise required by Article 9. In particular it is intended to regulate the extent to which there should be an ability to impose a prior restraint on publication of new journalistic material.

In Campbell v MGN the Court was not concerned with any issue which required categorisation of rights within section 32 as either procedural or substantive. Lord Phillips’ use of the epithet “procedural” was casually descriptive, and in that respect appropriate: section 32(4) is in one sense purely procedural because it provides for a stay of proceedings, which is a procedural remedy. That does not, however, determine the issue which arises in this case, as to whether it is part of the legitimate balancing of substantive rights of data privacy and freedom of expression. As Lord Phillips MR put it at paragraph 116 of Campbell v MGN: “We can readily accept that the purpose of these provisions is to prevent the restriction of freedom of expression that might otherwise result from gagging injunctions.” It is only in section 32(4) that there is to be found any specific protection against prior restraint or gagging injunctions; section 32(4) addresses itself specifically to future publication of new “news”, whereas s. 32(1) applies generally to all publication.

The Hansard materials which were drawn to my attention, which it was common ground were relevant and admissible, provide powerful support for Mr White’s submission. The Bill was introduced in the House of Lords. In moving the second reading Lord Williams of Mostyn referred to clause 31 of the Bill (which became s. 32 of the Act) in the following terms (Hansard (HL Debates) Fifth Series Vol DLXXXV, 2 February 1998, cols 441-2):

“I pause on one exemption which is of great importance. It is to be found in Clause 31, to which I promised to return. It relates to processing for the special purposes; namely, journalistic, literary and artistic purposes. The media have been concerned about the implications for their work of the EC Data Protection Directive. I am happy to repeat again publicly that the Government recognise the central importance of the work of a free press in a free society. With its broad definition of “processing”, not to mention the inclusion of manual records and the range of rights for individuals, the directive, and therefore the Bill, goes considerably further in protecting individuals’ personal information than does the present Act of 1984. It therefore inevitably has greater potential to put at risk the media’s legitimate use of such personal information. I am happy to see the noble Lord, Lord Wakeham [then Chairman of the Press Complaints Commission], in his place. He and I and others from the BBC, Channel 4 and the independent television companies, as well as newspapers and newspaper lawyers generally, had discussions throughout the summer and autumn of last year. We have provided for exemptions for the media. We have done that as deliberate policy, not by way of Christmas accident, where they are necessary to reconcile privacy with freedom of expression.

Following the meetings to which I referred, we have included in the Bill an exemption which I believe meets the legitimate expectations and requirements of those engaged in journalism, artistic and literary activity. The key provision is Clause 31. This ensures that provided that certain criteria are met, before publication - I stress “before” - there can be no challenge on data protection grounds to the processing of personal data for the special purposes. The criteria are broadly that the processing is done solely for the special purposes; and that it is done with a view to the publication of unpublished material. Thereafter, there is provision for exemption from the key provisions where the media can show that publication was intended; and that they reasonably believe both that publication would be in the public interest and that compliance with the Bill would have been incompatible with the special purposes.

We have specifically written into the Bill reference to compliance with a code of conduct which is capable of being approved by the Secretary of State. We have deliberately placed upon the face of the Bill, I believe for the first time in an Act of Parliament in this country, that the public interest is not the narrow question of whether this is a public interest story in itself but that it relates to the wider public interest, which is an infinitely subtle and more complicated concept. That is expressed elegantly in Article 10 of the European Convention on Human Rights as regards the transmission of views and opinions by the press and the necessary co-related right on behalf of the public to receive those expressions of views and opinions.

………….

We do not wish, and would not want, to inhibit the freedom of expression which is a fundamental and continuing part of the British way of life and which British broadcasters have enjoyed up to now in making programmes in a generally responsible way. It is clearly part of that tradition of information, the dissemination of views and discussion of ideas; for example, historical programmes dealing with analysis of the past. It is not the intention of the Government in implementing the directive that the making of these programmes should be inhibited or prevented by individuals attempting to use its provisions to re-write history or prevent the responsible discussion of historical subjects and documentaries which are an important part of the media’s role in informing, educating and stimulating public discussion.

Equally, it is part of the British tradition of freedom of expression that entertainment programmes, such as arts programmes, comedy, satire or dramas, can refer to real events and people. It is not the intention of the Government for the directive to be used to inhibit programme-makers from making programmes as they have up to now. The Government believe that both privacy and freedom of expression are important rights and that the directive is not intended to alter the balance, which is a fine one and always should be, that currently exists between these rights and responsibilities. I believe that the Bill does strike the right note in that respect. It was not until after a good deal of consultation and discussion, and perhaps cross-fertilisation of ideas, that we came to our conclusion. However, I repeat that if there is reasonable room for improvement, our minds are not closed.”

At the amendment stage in the House of Lords, Lord Falconer, then the Solicitor General, said this (Hansard (HL Debates) Fifth Series Vol DLXXXVII, col 513):

“The remaining four amendments to Clause 31 are of a little more substance, but they clarify or complement the provision which is already made in the clause rather than changing it. An essential feature of the mechanism is that it prevents data protection considerations being used to prevent the publication of unpublished journalistic and other material in certain circumstances. Clause 31 (4) provides for civil proceedings under any relevant provisions of the Bill to be stayed where a data controller claims that the processing is undertaken only for the special purposes - that is, journalistic, literary or artistic purposes - and with a view to the publication of previously unpublished material. The stay on proceedings remains until either the claim is withdrawn or a determination of the commissioner under Clause 43 that those criteria are not satisfied takes effect.”

In the course of the Bill’s consideration by the Standing Committee in the House of Commons, Mr George Howarth MP, the Parliamentary Under Secretary of State for the Home Department, said the following (Hansard (HC Standing Committee D) 5 May 1998 col 210-211):

“The directive recognises the need to reconcile data protection privacy rights with freedom of expression. Article 9, to which the hon. Member for Ryedale referred says that we

“shall provide for exemptions or derogations”

from the directive’s main provisions for processing

“solely for journalistic purposes or the purpose of artistic or literary expression”

and then “only if” - which means to the extent that “they are necessary”. We must also

“reconcile the right to privacy with the rules governing freedom of expression”,

which in practice means article 10 of the European convention on human rights. …

The directive leaves it to member states to find the best way to do that in their own circumstances - the legal background and the way in which the media, art and literature have developed in each country are, of course different. It was not an easy task for the UK. Those who tried to negotiate a way through the subject did not pretend for a moment that it was an easy undertaking. We had exhaustive discussions with media interests to identify difficulties. The biggest problem involved the need to avoid injunctions freezing the preparation of a story. Such a story ultimately might be in the public interest, but one item of information or piece of data might cause its preparation to be halted. The result is a careful set of checks and balances, which I shall set out in some detail, although I simplify the language.

Clause 31(1) provides exemptions from the data protection principles except security, subject access, blocking of processing, rectification and blocking of processing, rectification and blocking of automated decisions taking. Those apply where there is or was an intention to publish, where there is a public interest justification and where compliance with the Bill mechanism is not compatible with journalism.

Clause 31(4) provides a stay on court enforcement action where processing is claimed to be solely for journalism with a view to publication of fresh material.

Clause 43 provides a power for the commissioner to serve a special information notice solely to find out whether those two conditions are actually met.

Clause 44 provides a power for the commissioner to make a determination, subject to appeal, that those conditions are not, or are no longer, met and hence to lift any stay on court proceedings.

Clause 45 provides a power for the commissioner to a normal information notice only once it has been determined under clause 44 that processing is not or is no longer solely for journalism with a view to publication of fresh materials - and only then with leave of the court.

Clause 45 also provides a power for the commissioner to serve a normal enforcement notice only retrospectively and only if a court agrees that she can because there is a contravention of substantial public importance.

Clause 52 provides a power for the commissioner to help an individual bring an action against the media where there is a matter of substantial public importance.

All the measures are intended, in .a nutshell, to protect journalists’ right to handle material about people provided that it is for true journalistic purposes and in the public interest. They do not give individuals who have something to hide a lever to stop investigations but they ensure that there are remedies for an individual where the privacy of information about them was in fact invaded.

As part of the broader package of provisions in the Bill for journalism and its two related purposes, clause 31 plays a key role by exempting personal data processed for the special purposes from the main Bill mechanisms, provided that three cumulative conditions are met. Those conditions are: that the processing is with a view to publication of journalistic, literary or artistic material; that the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest; and finally, that the data controller reasonably believes that, in all the circumstances, compliance with the particular Bill mechanism is incompatible with the special purposes.”

And in the context of a proposed amendment which would have made the stay criteria justiciable:

“We think it right that there should be no possibility of challenge to processing for the special purposes, prior to publication. We wish to avoid what has been called the chilling effect of pre-publication restrictions. That is, in our view, wholly inconsistent with freedom of expression. A central thrust of the arrangements made in clause 31 and the associated provisions is to achieve that principle.

Subsections (4) and (5) of clause 31, together with later provisions, are directed at ensuring that no injunctions or other forms of relief depending solely on data protection considerations may be used to stop processing pre-publication in special purposes cases. The amendment would seriously weaken this carefully constructed mechanism by allowing applications to be made by third parties for injunctive and other proceedings relating to the special purposes to go ahead prior to publication.”

It is apparent from these materials that, as the clear language of the statute suggests, s. 32(4) was intended to be an important provision as part of the substantive balancing exercise between protecting the Article 10 rights of freedom of expression for journalistic purposes and protecting the data protection rights recognised in the Directive; and that it has a particular purpose in preventing the adverse effect on journalism of the threat of prior restraint on publication by injunction. Parliament plainly intended that whilst the degree of Article 10 protection afforded by the conditions in s. 32(1) was sufficient in terms of any post publication remedies pursued by a data subject, a greater degree of protection was justified prior to publication in order to protect against pre-publication restraint and the chilling effect of its potential availability.

It is well recognised in both domestic and European jurisprudence that in the field of journalism, protection of freedom of expression requires particular importance to be attached to protection from pre-publication restraint, and that protection of the private rights of individuals may adequately be secured by the ability to sue for damages after publication.

In The Observer and the Guardian v United Kingdom (1992) 14 EHRR 153, the ECtHR said at paragraph 60:

“… The dangers inherent in prior restraint are such that they call for the most careful scrutiny on the part of the Court. This is especially in so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”

This has long been recognised in the field of defamation, where the Court’s practice has been to refuse any restraint on publication if the publisher asserts the truth of the published material: Bonnard v Perryman [1891] 2 Ch 269. In Greene v Associated Newspapers [2005] QB 972 the Court of Appeal considered the manner in which the English legal system struck the balance between rights under Articles 8 and 10 of the ECHR in respect of the availability of orders for prior restraint in defamation proceedings. Having noted that “[i]n this country… [o]ur press is free to get things right and it is free to get things wrong” (paragraph 1), the Court held that the balance struck in the domestic law was consistent with the Convention. This was in part because the availability of an interim remedy would impair the Article 10 rights of the media by enabling the obtaining of injunctions based on necessarily incomplete information prior to trial: see [67]-[81].

The adverse impact on the media’s exercise of its right of free expression stems not only from the actual use of powers of pre-publication restraint, but from the very existence of such powers. The very possibility that such powers may be used itself interferes with and inhibits free journalistic expression. The importance of protecting against this inhibiting chilling effect on journalistic free expression is self-evident, and is also emphasised in the Strasbourg case law. In Mosley v UK [2012] EMLR 1 the ECtHR repeatedly referred to such chilling effect in rejecting the applicant’s argument that Article 8 of the ECHR obliged the media to pre-notify, before publication, an individual on whose private life it intended to report. The Court expressly recognised (at [120]) that the existence of ex post facto damages for violation of Convention rights arising from newspaper publication may be a sufficient protection; and (at [129]) that the chilling effect of a pre-notification duty attracting sanctions would make it incompatible with Article 10.

I return to Campbell v MGN. Lord Phillips observed at paragraph 122 that the definition of processing in the Act is so wide that it embraces the relatively ephemeral operations that would normally be carried out by way of day to day tasks in journalism; and that the speed at which those operations have to be carried out if a newspaper is to publish “news” renders it impractical to comply with many of the data processing principles and conditions. The availability of any restraint on such data processing would potentially impact very severely on the press’ freedom of information and its ability to act as a public watchdog, whose importance has been repeatedly avowed. As Lord Phillips put it at paragraph 123:

“….the requirements of the Act, in the absence of section 32, would impose restrictions on the media which would radically restrict the freedom of the press.”

He was there talking of the requirements of s. 32(1), not specifically the question of any stay or prior restraint; but the point is that if there were a possibility of the Court intervening prior to publication to determine whether a journalistic entity had strayed beyond the bounds of the s. 32(1) protections and so inhibiting publication of new material, there is a real risk that the whole journalistic process would become impaired and inhibited.

Investigative journalism often requires acquiring and retaining data which is protected by the Act over a period of time and using it for a number of stories, in a way which could be seriously hindered and discouraged were the data to be subject to the full rights under the Act at the suit of the data subject prior to its full and final deployment in the published journalistic material. The process would be thwarted if the subject had access to the detailed extent or direction of the investigation, of the information gathered or of the intended story. It would be severely inhibiting to such a process were the subject able to go to Court and seek to require the information to be provided under s. 10(4) of the Act. Section 32(1) alone would not provide adequate protection. On such an application the very investigation of whether the s. 32(1) conditions were fulfilled, or arguably fulfilled, would have to involve disclosing to the data subject the nature of the information held by the journalist and the scope and intended scope of the investigation and story, if the subject were to be afforded a fair opportunity of contesting the issue or fulfilment or arguable fulfilment of the s. 32(1) criteria. Moreover, the mere existence of the possibility of such an application may have the chilling effect which Parliament legitimately wished to avoid by the clear terms of section 32(4).

In considering whether the pre-publication restriction contained in s. 32(4) is within the permitted margin of appreciation as necessary and proportionate, it is also material that it applies only to claims under the Act. The Act is not, however, the primary means by which effect is given in domestic law to privacy rights under the ECHR, which are protected by private law rights of confidentiality, privacy and freedom from harassment. The torts of harassment, breach of confidence, and misuse of private information safeguard ECHR privacy rights by the availability of remedies, both interim and final. As the present case illustrates, conduct will often be relied on as constituting both a breach of the Act and also the commission of the torts of harassment and/or breach of privacy and/or breach of confidence. To the extent that there is such overlap, s. 32(4) imposes no substantial restriction because it applies only to claims under the Act. Section 32(4) is only of significance where there is no other remedy than a claim under the Act. That is most likely to arise in a relatively narrow set of circumstances which will usually involve what are less serious invasions of individuals’ private rights. Conduct breaching data protection rights conferred by the Act may not engage an individual’s other private law rights for a number of reasons: personal data is widely defined to include, for example, an individual’s name or a photograph in a public place; processing is widely defined to include, for example, simply possession rather than use. However it is only in this relatively narrow sphere of what will usually, at least, be less serious breaches of private rights that s. 32(4) operates to impose a substantive restriction, that is to say where the conduct breaches data rights protected by the Act but the conduct is not a breach also of private rights protected by other statutory or tortious remedies.

Mr Coppel submitted that s. 32(4) was redundant in providing any protection against pre-publication restraint. If it were not there, he argued, the Court would exercise suitable caution in any application for a gagging injunction or restraint of material prior to publication, in accordance with the common law principles and traditions which would influence the exercise of its discretion under s. 37 of the Senior Courts Act 1981, in just the same way as it exercises such caution in the context of defamation proceedings in accordance with the Bonnard v Perryman line of authorities.

Mr White responded by submitting that in the absence of s. 32(4) the Court’s powers to grant a stay would lie not merely under s. 37 SCA, but would have to take into account s.10(4) which enabled the Court to order compliance with an enforcement notice. However this does not meet the point. Section 10(4) is by its terms discretionary (“…the court may order him…”), as is s. 7(9), such that the Court would still have a discretion to exercise, just as it would generally under s. 37 SCA.

Nevertheless there are, as it seems to me, two answers to Mr Coppel’s submission. The first is that it is for Member States to determine the extent to which it is necessary under Article 9 to make provision for the protection of journalism in the context of pre-publication restraint, as Parliament has sought to do in s. 32(4). That is a choice for Parliament, which has identified the circumstances in which the protection is to be conferred on those involved in journalism. Section 32(4) is not redundant in thereby articulating the way in which the balance is to be struck; in its absence, the Court would have to work out its own principles which might or might not coincide with those chosen by Parliament and clearly articulated in the subsection. Secondly Mr Coppel’s submission ignores the chilling effect of the possibility of pre-publication relief.

For all these reasons I do not consider s. 32(4) to be inconsistent or incompatible with Article 9 of the Directive. On the contrary it is part and parcel of the balancing exercise which is required by Article 9, and within the margin of appreciation afforded to the UK Parliament to protect Article 10 ECHR rights by a measure of relatively narrow application designed to prevent the stifling of journalism in progress.

Mr Coppel’s argument is not advanced further by reliance on Articles 22 and 23 of the Directive. The terms of those articles make clear that they are concerned only with remedies to ensure the efficacy of the national laws giving effect to the Directive. If, as I have concluded, s. 32(1) and 32(4) form part of the fabric of the balancing exercise required by Article 9, and must be taken together as shaping the substantive rights in the context of journalistic activities, there is nothing in s. 32(4) which can be said to fail to give effect to the rights conferred by the Directive as enacted by national law.

Nor does the argument gain anything from reliance on the Charter. As explained above, it is well established that the rights to protection of data conferred by Article 8 of the Charter are based on the rights provided under the Directive and do not extend them. The Claimant’s argument that there is incompatibility with the Charter cannot succeed if there is no incompatibility with the Directive.

It is not necessary to determine the further issues on which argument was addressed to me as to whether in the event of incompatibility it would have been possible to disregard s. 32(4) by applying the Marleasing principle or the Benkharbouche principle. I express no view on these issues which do not arise in the light of my conclusions.

There remains one issue as to the nature of the stay required by s. 32(4). The position of both sides at the outset of the hearing was that the stay required by s. 32(4) was of all the proceedings, not just the DPA Claims The Defendant had, prior to issuing the application, invited the Claimant to agree voluntarily to a stay only of the DPA claims, with the remainder going ahead, but this had been declined.

As I observed in the course of argument, s. 32(4) can be read as requiring a stay only of claims under the Act, and only in so far as they fulfil the criteria in s. 32(4)(b), that is to say that they relate to unpublished material. This seems to me to be the correct construction both as a matter of domestic law, given that the Act is intended to apply to claims covered by the Act; and as a result of the Marleasing principle. Were it otherwise, any proceedings which included claims additional to those which fell within s. 32(4), including DPA claims relating to material solely for use in prior publication and claims for other private law remedies, would have to be stayed under s. 32(4); it seems inevitable that if that were the effect of s. 32(4), it would breach Article 9 of the Directive and Article 6 of the ECHR, and quite probably Article 8 also.

During the course of the hearing, and as a result of a number of exchanges, Mr White on behalf of the Claimant became inclined to accept that this is the correct construction and effect of s. 32(4). Mr Coppel argued that if s. 32(4) permitted a stay of only DPA claims and only in relation to data for unpublished material, leaving other claims unstayed, it would give rise to great difficulties in relation to what was to happen to the remainder of the proceedings whilst the DPA claims stay was in place, and that such a construction would involve rewriting the parliamentary purpose. I cannot accept that submission. If the effect of s. 32(4) is only to impose a stay pro tanto, what happens to the remainder of the claims will be a matter for the discretion of the Court exercising its case management powers. The Court often has to consider circumstances where some claims can only be advanced ahead of others, and deals with such fact specific circumstances on a case by case basis. This does not undermine any statutory purpose. The parliamentary purpose is reflected in the wording of s. 32(4) which provides for a pro tanto stay, both as a matter of the natural construction of the statutory wording and by application of the Marleasing principle.