This striking decision risks undercutting the law of defamation, which has grown incrementally to balance the interests of freedom of expression and of reputation. Further, it gives claimants a new tool to hold the media to account and it adds uncertainty into the law.
One notable feature of the decision was the reliance on IPSO’s rules, the independent regulator of much of Britain’s print media, to define the bounds of a data protection claim for “unfair” processing. This reliance is problematic, and, in this case at least, was based on a misunderstanding of what IPSO does.
The Case
This case arose from an article published in the Daily Mail on 9 June 2023. The article juxtaposed the headline “Labour repays £100,000 to ‘sex harassment’ donor” alongside pictures of entrepreneur Dale Vince.
The headline and pictures could imply that Vince, the Claimant, was the “sex harassment’ donor”, which he says caused him damage. However, the text of the article made clear that another individual was the “sex harassment’ donor” and the criticism of Mr Vince was on other grounds, relating to his involvement in Just Stop Oil.
Vince complained about the article to IPSO under Clause 1 of the Editors’ Code, which requires member newspapers to “take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text” and to correct significant inaccuracies, misleading statements and distortions. IPSO rejected that complaint without further investigation on the basis that the text of the article clarified that Vince was not the “‘sex harassment’ donor”.
Vince then made a defamation claim against the Daily Mail. This claim was struck out. Under the rule in Charleston, a court in a defamation claim will determine the meaning of an article as a whole rather than the headline in isolation. Under that rule, a reader here would read the text and understand that Vince was not the “‘sex harassment’ donor”. As such he had no defamation claim in respect of this headline.
Not being one to give up easily, before his libel claim was struck out, Vince tried to obtain redress for the third time, this time through a legal claim for breach of data protection law, namely the UK GDPR. Article 5 places a duty on data controllers to process personal data “fairly” unless an exception applies. Article 82 allows claimants to claim for “material or non-material damage” caused by a breach.
The High Court struck out the data protection claim as an abuse of process and also dismissed it summarily on the grounds that the rule in Charleston also applied to data protection claims. Vince appealed to the Court of Appeal.
The Court of Appeal Decision
Sir Geoffrey Vos, the Master of the Rolls, gave a judgment with which Lord Justice Warby and Lady Justice Whipple agreed. He held that Vince’s data protection claim was not an abuse of process. I do not dwell on this aspect of the decision further. Significantly, he also held that the judge below had been wrong to dismiss the data protection claim. Instead, he should have granted Vince summary judgment on his claim.
He reasoned that a claimant could sue for a breach of the duty to process data “fairly”. It was “unnecessary and undesirable to lay down any generally applicable test” as to what constituted fair data processing. However, what was “fair” would be affected by context, the balance of interests between data controller and subject and the reasonable expectations of the data subject.
In this context, Clause 1 of IPSO’s Editors’ Code was important in determining what “fair” processing meant. Given that many readers would have only read the pictures and headline, and been left with the “irresistible conclusion” that the Claimant was the sex harassment donor, this was clearly misleading in breach of Clause 1 of IPSO’s Code.
The rule in Charleston, that the article needs to be read as a whole in a defamation context, was not relevant. Whilst it applied to data protection claims about the accuracy of an article, it was not determinative of whether an article was “fair”.
The Court also held that the clear breach of Clause 1 of IPSO’s Code meant that the journalistic exemption (in essence a defence to a data protection claim) did not apply.
The Court did not go on to deal with what damages should be awarded. That matter would be remitted with “open questions about whether harm must be proved in a claim of this kind, whether compensation for reputational harm is recoverable, and whether Mr Vince has sufficiently made out a claim to compensation for distress”.
Comment
This is a significant decision. Historically a person who has suffered harm because of an allegation in a newspaper has had to look to defamation law to provide a remedy. That law has developed incrementally, balancing the interests of defendants’ freedom of expression and of claimants’ reputations. This has given rise to a complex web of carefully calibrated rules, such as the rule in Charleston and a uniquely short one-year limitation period for bringing a claim.
This decision opens the door for claimants to get around those carefully calibrated rules, potentially suing newspapers for articles which breach a rather nebulous duty of fairness in circumstances where no claim would lie in defamation.
If, as remains to be seen, a claimant can be awarded reputational damages for an “unfair” article, this would complete the circumvention of the law of defamation by the law of data protection. But even if reputational damages cannot be awarded, the prospect of data protection claims on the grounds of fairness opens publishers up to a new ground of liability for distress, personal injury and financial damages. That is a significant additional burden on freedom of expression.
This creates legal uncertainty too. The Court leaves the concept of fairness undefined and refers to the rather vague idea of “a balance which will be influenced by the circumstances of the data usage, the interests of the data subject and the data controller, the public interest and whether the processing is proportionate to any harm caused” [65].
The IPSO Element
The reliance on IPSO’s Editors’ Code for what is “fair” data processing, and whether the journalistic defence applies in a given case, is also striking and potentially problematic.
First, not all newspapers are members of IPSO, notably the Guardian and FT. Media defendants such as the BBC are regulated by OFCOM. Many media outlets are not subject to a regulatory code. When determining whether they have processed data “fairly” are they all to be subject to IPSO’s Code, to which they have not signed up? Or are they all to be held to different standards, with some media defendants able to publish articles which others are prohibited from on pain of a civil claim for damages?
Second, how closely will the duty of “fairness” be tied to compliance with IPSO’s Code. If any breach of IPSO’s rules gives rise to a claim for unfair data processing, does this risk elevating a form of regulatory redress through corrections and adjudications into a form of legal redress with the ability to claim compensation. No doubt, IPSO members did not foresee this result when they signed up to the regulator and might view the Court’s ‘regulation-to-law alchemy’ with some alarm.
Third, if the courts are going to turn IPSO’s Code into a legal benchmark, they should probably get that Code right. Ironically, in this case IPSO actually determined that the article was not a breach of Clause 1 whereas the Master of the Rolls said it was. His answer to this inconsistency was that IPSO only dealt with Vince’s complaint that the article was inaccurate, rather than whether it was misleading. This does not bear scrutiny. IPSO would have determined generally whether the article was inaccurate, misleading or distorted. It decided without further investigation that it was not. It did so, no doubt, because in determining whether there is a breach of Clause 1, IPSO takes an approach similar to the rule in Charleston and looks at the entire publication.
IPSO’s famous ruling against the Sun’s headline that the “Queen Backs Brexit” is evidence of this. The text of the Sun’s article had nothing to suggest the Queen supported Brexit, only that she had reportedly made sceptical comments about the EU. The article taken as a whole was misleading. In this case, the text of the article clarified any ambiguity and made clear that Vince was not the “‘sex harassment’ donor”. The article as a whole was therefore not misleading. One wonders whether using IPSO’s approach to justify a departure from the Charleston rule is based on a misunderstanding of IPSO’s Code.
In summary, this is an important and surprising decision which may well be subject to an appeal or further litigation around the available damages. Ultimately, it raises more questions than it answers, and may cause concern amongst media defendants.
Sean Sutherland is a pupil barrister at Doughty Street Chambers specialising in media law and similar areas. He worked at IPSO from 2019-21 and as the judicial assistant to Lord Justice Warby from 2022-23.