The Data Protection Act 1998 is increasingly being deployed as part of a claimant’s arsenal in defamation claims. The Information Commissioner has historically resisted policing DPA breaches in the context of allegedly defamatory expressions of opinion by one person about another.
Courts, on the other hand, have accepted that expressions of opinion about individuals are (as the definition at section 1 of the DPA makes clear) personal data, and that the DPA can therefore bite. This has arisen, for example, in the context of Norwich Pharmacal claims seeking the disclosure of the identities of users posting allegedly defamatory material. See for example Applause Store Productions Ltd and another v Raphael  EWHC 1781 (QB), on which Anya Proops posted here.
The use of the DPA in defamation claims (or cases which, though brought under the DPA, look in substance like defamation claims) has, it seems, gathered momentum. In late 2011, Tugendhat J gave judgment in a case about the ‘Solicitors from Hell’ website: The Law Society and others v Rick Kordowski  EWHC 3185 (QB), on which Rachel Kamm posted here.
Last month, the DPA was again successfully relied upon as founding an arguable defamation-type claim. Desmond v Foreman, Shenton, Elliott, Cheshire West and Cheshire Council and Cheshire East Council  EWHC 1900 (QB), involved a cover teacher who was suspended and ultimately dismissed following allegations that he had conducted himself in an inappropriate sexual manner towards a sixth-form student. The case involved a number of communications: meetings to discuss the allegations; requests for information from the police and previous employers; referrals to the Independent Safeguarding Authority, and queries about his home situation made by an officer of one local authority to an officer at another.
The claimant contended that a number of these communications implied that he was actually guilty of and had actually committed various serious offences (including rape, of which he had been accused in 2001 but exonerated through court proceedings). He brought a defamation claim, also contending that the allegedly defamatory statements infringed his rights under Article 8 and the DPA (in particular, breaches of data protection principles 1, 2, 3, 4 and 6).
The defendants – two local authorities, a headmaster and two local authority officers – sought summary judgment. They said the communications complained of were no more than expressions of concern that matters needed investigating, they asserted qualified privilege (based on the performance of their public duties) and justification.
The judge – as in Kordowski, Tugendhat J – dismissed the application for summary judgment in part, finding that the claimant’s case under Article 8 and the DPA had a real prospect of success in relation to some of the communications complained of.
The judgment is of interest not only as an illustration of the difficulties of lawfully sharing sensitive information (including opinions) in the context of safeguarding children. It also illustrates that the DPA is increasingly – and realistically – being pressed into the service of types of complaint traditionally brought under other heads. The DPA and Article 8 are, of course, long-standing and natural complements to each other. Defamation, however, is slightly more alien territory for the DPA. Copyright infringement (on which, see a post of mine from last year here) is another area to which the DPA is increasingly relevant.
What, it is sometimes wondered, does a claim under the DPA add which is not already covered by claims under Article 8, defamation and so on? After all, as the defendants in Desmond argued, if someone is aggrieved at DPA breaches, then he has another remedy available, namely a complaint to the ICO. Interestingly, Tugendhadt J’s judgment in Desmond reverses this: what, he asked, would an Article 8 or defamation claim add to the DPA claim – at least with respect to one of the communications complained of? In particular, he was concerned with how best to deal with the claim that information about the 2001 rape allegation had been processed (retained, communicated) without reference to the judgments exonerating the claimant.
This last point about fair and accurate records of serious allegations is important: see an older post of mine here.
For the moment, back to Desmond and how best to deal with legal claims about this sort of complaint. Tugendhat J said this:
“81. How and why it is that the references to the 2001 incident came to be recorded, but recorded without mentioning the public judgments of the court containing the police’s explanation for not charging the Claimant, is a question for which the proceedings under the DPA may provide the most appropriate form of investigation (as the Court of Appeal suggested in para 51 of their judgment). It is for consideration whether claims under the HRA or in defamation would add any benefit to the Claimant over and above a claim under the DPA. And as noted above, a claim under the DPA appears to raise no issues of limitation.
82. I invited the parties to consider why the Court should not direct that the claim under the DPA proceed first and separately from the other two claims, and give directions as to the filing of evidence (or agreed statements of facts) so that the matter could be determined in accordance with the overriding objective, and in particular with the objective of allotting to the case an appropriate share of the court’s resources.”
This demonstrates that, at least in some circumstances, the DPA may appropriately play the lead role rather than a supporting one in a complaint about unjustifiable and damaging communications about individuals. It looks as if the DPA will continue to flex muscles it did not even know it had.