Case Law, Al-Ko Kober Ltd v Sambhi: Malicious Falsehood and Data Protection injunctions to restrain YouTube videos – Emma Foubister

12 10 2017

In the case of Al-Ko Kober Ltd & Anor v Sambhi [2017] EWHC 2474 (QB), Mrs Justice Whipple took the unusual step of granting an application for: (1) an interim injunction in malicious falsehood; and (2) an order to cease processing personal data under section 10(4) of the Data Protection Act (‘DPA’).

Background

The first claimant, Al-Ko Kober Ltd (‘the Company’), was the UK branch of Al-Ko VT, a leading brand in the towing and trailer industry. The Company’s AKS stabiliser products are braking systems designed to apply a caravan’s brakes autonomously in an emergency. The second claimant, Mr Jones, was the Marketing Manager of the Company. The defendant, Mr Sambhi, claimed to be developing a rival product called “the Torquebar”.

The case concerned 84 videos posted by Mr Sambhi on his YouTube channel, which were derogatory towards the AKS stabilisers and Mr Jones. Many of the videos contained caravan accidents with words identifying the Company and its products. The claimants became aware of the videos in May 2017 and, during the following months, they repeatedly asked Mr Sambhi to take the videos down. He denied any wrongdoing and continued to post new videos which became more personal in tone and referred to Mr Jones as a ‘killer’.

Judgment

Malicious falsehood

The Court had to determine whether the Company was likely to establish at trial that publication of the information in question should not be allowed pursuant to section 12(3) of the Human Rights Act 1998 (interim relief affecting freedom of expression) [5]. Applying the rule in Bonnard v Perryman [1891] 2 Ch 269 to the tort of malicious falsehood, the Court had to be:

“satisfied that no judge or jury could reasonably conclude that the statements made by the Defendant were true” [6]-[7].

False statements

Whipple J was satisfied that a substantial number of persons would take the statements in the videos to mean that the ASK stabilisers were inherently unsafe products or that the Company was fraudulent and knowingly risked the lives of the public or that Mr Jones had been exposed as telling lies about the stabilisers [13]-[15].

Mr Sambhi failed to produce any evidence to support his assertion that these statements were true [16]. His case was that the Company lied by suggesting that the AKS stabilisers were guaranteed to prevent ‘snaking’ (which is where a caravan starts to veer sideways behind the towing vehicle) [17]. As none of the Company’s assertions guaranteed that snaking would not occur, Mr Sambhi’s statements were obviously untrue and his case was based on an entirely false premise [18]-[20]. He advanced no serious basis for suggesting that the stabilisers were defective whereas the Company provided ample evidence to demonstrate that the stabilisers were safe [21]-[22].

Malice

There was evidence that Mr Sambhi had improper motives in publishing the material, but there was no need for the Court to reach a conclusion as to the issue of past malice [29]-[31]. Future publication would certainly amount to a malicious falsehood because Mr Sambhi would understand, from the judgment, that the statements in the videos were false [31]-[32].

Data Protection Act

Mr Jones gave Mr Sambhi a data subject notice pursuant to section 10 of the DPA, requiring Mr Sambhi to cease processing his personal data by publishing and/or continuing to publish the words and images of Mr Jones in the videos [40]. The videos were causing unwarranted and substantial damage and distress [36].

Mr Sambhi failed to comply with the data subject notice and did not advance any reason to justify his failure to do so [41]-[42]. There is no public domain exception to section 10 [42]. As Mr Jones was being vilified and menaced and the use of his personal data extended far beyond criticism that could be expected by a senior employee at a large commercial organisation, Whipple J decided that it was an appropriate case to order Mr Sambhi to comply with the notice [43]-[44]:

“I agree that the order should provide that Mr Sambhi must not process, further process or cause or permit to be processed any audio recording, video recording, still photograph or other information, including by disclosing the same to the public, amounting to Mr Jones’s personal data for the purposes of the DPA”.

Conclusion

The Court allowed the application in both limbs: (1) to prevent malicious falsehood; and (2) to prevent further breaches of the DPA.

Comment

Interim injunction in malicious falsehood

The rule in Bonnard v Perryman presents a challenge for claimants in defamation and malicious falsehood interim injunction applications. In contrast to interim applications in privacy or breach of confidence, the court cannot assess the balance of convenience or competing interests under Articles 8 and 10.  It is difficult for a court to be satisfied that no judge or jury could reasonably conclude that a statement is true at an interim hearing with limited evidence. It is particularly challenging in malicious falsehood cases, where a number of possible meanings may be attributed to any given statement.

In this judgment, Whipple J convincingly determined that each possible interpretation of the statements in the videos was false. She relied, in particular, on the total lack of evidence to support Mr Sambhi’s assertions.  In the context of a mechanical rule which automatically prioritises Article 10, it will only be in rare cases that a defendant is unable to produce any evidence at all. In reality, an interim injunction is only likely to be granted if the defendant is anonymous or does not engage with the process. This is an interesting example of a court’s willingness to grant an injunction when a defendant’s evidence is woefully inadequate.

Perpetual injunction under DPA

Applying the approach in Law Society v Kordowski [2011] 3185 (QB), Whipple J granted a perpetual injunction against Mr Sambhi under section 10(4) DPA. The order provides a robust means of protecting Mr Jones from vilification. While such orders remain unusual under the DPA, Whipple J’s approach is consistent with the increased use of the DPA to defend reputation (see a previous blog post on use of the DPA that arguably goes beyond Parliament’s intention).  An injunction to restrain the processing of inaccurate data under the DPA may be a powerful weapon for those unable to pursue a successful claim for defamation.

Emma Foubister is a trainee barrister at Matrix Chambers


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12 10 2017

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