RPC hosts seminar on 'Data Privacy and the Media'
On 28 January 2016, RPC hosted a 'Question Time' style panel discussion for a range of media lawyers on data protection and its particular relevance to the media industry and media companies.
The panel, chaired by RPC partner Keith Mathieson, comprised Antony White QC (Matrix Chambers), Catrin Evans QC (One Brick Court), Nicola Cain (Head of Legal – Freedom of Information & Contentious Data Protection at the BBC) and Robin Hopkins (11KBW).
The discussion covered a wide range of data protection related topics such as the General Data Protection Regulation, the 'right to be forgotten', subject access requests, the journalistic exemption under s32 of the Data Protection Act 1998 ('DPA') and a comparison of data protection claims with claims for misuse of private information and defamation. Some highlights of the discussion are set out below.
The panel were asked whether, in future, those who claim their privacy has been infringed by the media would be likely to focus their claims on a breach of their data protection rights as opposed to a claim in misuse of private information ('MPI'). A comparison was drawn between the pleadings in Weller v Associated Newspapers Limited and the recent claim filed against the same newspaper by Ashton Kutcher, Mila Kunis and their daughter. The former was run as a MPI / Article 8 claim with a data protection claim parasitic to the privacy claim. The latter, however, is pleaded predominantly as a data protection claim with a misuse of private information claim bolted on. This represents the recent trend, particularly in light of the decision in Vidal-Hall v Google, of privacy claims being re-drafted as breaches of data protection rights.
A perceived attraction to claimants of a data protection claim over a MPI claim is that the cause of action does not require any privacy or for Article 8 to be engaged – the DPA only requires processing of personal data. Both of the aforementioned claims concerned photographs of children in public places, however the Kutcher claim is brought by both parents as well as the daughter (whereas the Weller claim was only brought on behalf of the children). Later in the evening the example of someone arrested in a public place was discussed – if an arrest took place in public then a reasonable expectation of privacy would be hard to prove, whereas an action under the DPA might still be available. Further possible benefits to data protection claims were highlighted such as that they are not concerned with any Article 8 seriousness thresholds and the variety of technical provisions in the DPA means that claimants have lots of options available when trying to establish a breach. Whilst data protection claims were described by one panellist as an easier and more accessible tool for claimants than the more established MPI cause of action at present, people are likely to continue to use both causes of action as they advantage claimants in different ways.
However, data protection claims are faced with the journalistic exemption provided by s32 of the DPA, which exempts the processing of personal data if the data controller believes publication would be in the public interest and that compliance with the DPA provisions would be incompatible with the special purposes of journalism. Section 32 also provides a procedural obstacle for claimants seeking to get hold of unpublished journalistic material. Once s32 is invoked, the claim is stayed unless a claimant can persuade the ICO that the material is not being processed solely for journalistic purposes or with a view to publication.
The panel were also asked whether there was any form of triviality threshold in relation to data protection so that 'Jameel abuse' type arguments could be deployed in the context of a data protection claim. The panel referred to the Court of Appeal's judgment in Vidal-Hall where such arguments were not ruled out as a matter of principle in relation to data protection claims. The reality of harm alleged in a data protection claim should certainly be examined by defendants. The panel remarked how it is currently ripe for the courts to examine whether typical barriers to libel claims such as seriousness, limitation and the various defences can be side-stepped by bringing a claim under the DPA.
Section 32 was the subject of further discussion throughout the evening. The panel were asked to what extent could 'celebrity gossip' stories satisfy the public interest requirements of s32. The panel referred to the powerful defence of the importance of freedom of speech expressed by Lord Falconer during Lords debates on the Data Protection Bill (his statements can be found in Hansard, in particular here and here). Lord Falconer, whilst explaining the public interest requirements of the journalistic exemption, stated that: "'public interest' does not mean that the public are interested. It means something wider than that; namely, that there is a public interest having regard to the special importance of freedom of expression, but in relation to a particular story the press should be free to express it". Furthermore, he stated "The Bill explicitly directs particular attention…to the special importance of the public interest in freedom of expression. This gives the weighting which we believe is required by the reconciliation of the rights to privacy and freedom of expression by suggesting that there is a general sense in which publication per se is an exercise of freedom of speech in which there is a general public interest".
Finally, the panel also drew the audience's attention to Recital 17 of the new General Data Protection Directive which should clear up the issue which was central to the Mosley and Hegglin claims against Google: the provisions of the GDPR will be without prejudice to the safe harbours offered to online intermediaries in the E-Commerce Directive.
Thanks must go to Antony, Catrin, Nicola and Robin for comprising the panel and offering their expert insights. Thanks also to all those who attended and contributed to the lively and interesting discussion.