Under Section 32 of the Data Protection Act 1998 civil liability on the part of the media for breaching the Data Protection principles depends upon whether the Defendant in question can establish a reasonable belief that publication would be in the public interest.

Parliament has also recently amended Section 55 of the Data Protection Act so that a media defendant can establish a defence to a criminal charge of knowingly or recklessly obtaining, disclosing or procuring disclosure of personal data if he establishes that he acted in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest (see Section 55(2)(ca) as inserted by Section 78 of the Criminal Justice and Immigration Act 2008).

I have previously argued that as Sections 32 and 55 (as amended) represent public policy in relation to the balancing of Articles 8 and 10 where it is alleged that a media Defendant has misused personal data, a similar test (i.e. reasonable belief in public interest) should apply in the developing law of privacy and confidence.  Why should the balance be struck differently by the courts from the manner in which it has been struck by Parliament?

There are some signs that this view is gaining traction.  In a speech entitled “Privacy and the Press: Where are we now?” delivered by Sir David Eady at a conference on 1 December 2009 he described this as an “issue that merits closer consideration.” He added:-

“Then there is Antony White’s point about bringing in an element of consideration for a journalist’s assessment of the public interest.  After all, that has to be the test, presumably, when the matter is being assessed by the Court prospectively, for the purposes of granting or not granting an interim Injunction.  Should it be different after the event?”

The issue was also flagged for future consideration by Tugendhat J. in Terry v. Persons Unknown [2010] EMLR 16.  Tugendhat J. referred to the possibility of a submission that the Defendant, or a person given notice of the Order, believed that publication would be in the public interest ([8]).  Later in the judgment he referred to uncertainty in the existing law as to the extent to which, if at all, the belief of a person threatening to make a publication in the media is relevant to the issue of public interest [70].  After citing from the Judgment of Eady J. in Mosley v. News Group Newspapers Limited ([2008] EMLR 679), and referring to the provisions of Section 32 of the Data Protection Act 1998, he observed

“The Data Protection Act might well apply to a newspaper publication, and in particular to an online publication.  If that Act did apply, it would be anomalous if the public interest defence under Section 32 required the Court to have regard to the reasonable belief of the journalist, but that the same defence under the general law did not.  I cannot decide that any reasonable belief on the part of a journalist or editor would be irrelevant without hearing argument for that proposition, if it is to be advanced.” [73]

The extra judicial comments of Eady J., and the dicta of Tugendhat J. in Terry, must also be seen in the context of a recent amendment to the PCC Code.  As is well-known, Section 12(4) of the Human Rights Act 1998 obliges the Court, when considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression, to have regard, where the proceedings relate to journalistic material, to “any relevant privacy code”.  The PCC Code is a relevant privacy code.  The PCC Code until October 2009 stated that “Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served”.  In October 2009 it was amended to bring it in line with the Data Protection Act 1998. The relevant provision now states:-

“Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.”

The reconciliation of the developing law of privacy and confidence with the balance struck between Articles 8 and 10 in relation to journalistic activity under the Data Protection Act 1998, and under the PCC Code as amended, seems ripe for judicial consideration.

Public Domain

In the Terry case Tugendhat J. pointed out at that “public interest and public domain are the most common justifications for publishing information which was or is confidential” [50].  Recent authorities also tell us something about public domain.

In R (L) v. Commissioner of Police for the Metropolis ([2010] 1 AC 410) Lord Neuberger, with the agreement of Lord Brown, confirmed the view already expressed at first instance and in the Court of Appeal that even where information is already in the public domain, republication of the information can often engage Article 8:  [71].

In each of Re British Broadcasting Corporation ([2010] 1 AC 145 at [27], [70]), Re Guardian News and Media Limited [2010] 2 WLR 325 at [74] and Independent News and Media Limited and Others v. A (By his Litigation Friend, the Official Solicitor) ([2010] 3 All E.R. 32 at [22]) the extent to which some private information about the individual in question was already in the public domain was regarded as a highly material factor when balancing the competing rights under Articles 8 and 10.  The presence of some private information about an individual in the public domain does not mean that Article 8 will not be engaged by the publication or threatened publication of further information (or, the republication of the same information), but it will be highly material to the balancing exercise.

Procedure

In TUV v. Persons Unknown ([2010] EWHC 853 (QB)) Eady J. clarified the extent to which it is, or may be, appropriate to give prior notification of an application for an Injunction to restrict a Defendant or Defendants (sometimes as yet unidentified) from communicating information alleged to be private or confidential to any media third party upon whom it is intended to serve any Order obtained.  The question had been considered in a number of cases including X and Y v. Persons Unknown [2007] EMLR 290 at [18]-[19], WER v. REW [2009] EMLR 304 at [18]-[19] and Terry v. Persons Unknown [2010] EMLR 16 at [110]-[120].  Eady J concluded at [26]:-

“I do not think it right that an applicant’s lawyers should have to give prior notification to each and every media group – simply on the basis that they might be interested in the story, or in the private information sought to be protected, if they hear about it.  Accordingly the law should only impose an obligation to notify those who are already believed to have shown some interest in publishing.”

The judgment of Tugendhat J. in the Terry case considers, somewhat tentatively, the appropriateness of so-called “super injunctions” (Orders containing provisions disclosing even the existence of the proceedings, the fact that the Order has been made, and providing for sealing of the whole Court file).  At [109] Tugendhat J. observed:-

“Secrecy may be essential in the case of a respondent who, if tipped off, is likely to defeat the purposes of an application by publishing the material before he can be shown to have had notice of the injunction, or before it can be granted.  It is less easy to show the need for such secrecy where the person targeted by the application is a national newspaper.  There may be a need to work out ways to address the problems which arise in such cases, but giving privacy claimants comprehensive derogations from Article 6 and Article 10 cannot be the answer.”

The appropriateness of such “super injunctions” is now under consideration by a committee established by the Master of the Rolls.

Antony White QC is a barrister at Matrix.  This is the final extract from a talk given at the 2010 “Protecting the Media” conference