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Data Protection and Freedom of Expression – High Court Ruling

The courts are alert to the danger of data protection laws having a chilling effect on journalistic, artistic and literary freedom. In one case that made that clear, the High Court stayed a claim brought by a businessman who resented a stream of articles that had appeared about him in the national press.

The businessman had launched proceedings against a media company that had published 27 articles concerning him in less than two years, including coverage of his public appearances and business affairs. He complained in particular about the publisher’s acquisition, retention and use of his personal data. He sought damages and an injunction for misuse of private information, harassment and breaches or threatened breaches of the Data Protection Act 1998.

In resisting the latter claim, the publisher pointed to the exemption contained within Section 32(4) of the Act which requires the courts to stay such proceedings if the data concerned is acquired, retained or processed with a view to the special purpose of publishing journalistic, literary or artistic material in the public interest.

There was no dispute that, on a literal interpretation of Section 32(4), the exemption applied. However, the businessman argued that the exemption was incompatible with European Directive 95/46/EC, which the Act was intended to implement, and the Charter of Fundamental Rights of the European Union.

In upholding the publisher’s arguments and staying the proceedings under the Act, the Court found that there was no such incompatibility. Member states had a margin of appreciation in implementing the Directive in a manner that protected freedom of expression rights enshrined in Article 10 of the European Convention on Human Rights. It was for Parliament to perform a balancing exercise between potentially conflicting rights and Section 32(4) fell within that margin.

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