The English Court of Appeal has confirmed in a recent case that data protection claims may be brought hand-in-hand with defamation claims. The case provides a reminder to businesses that the use of data protection as a weapon in litigation is growing ever more commonplace.

Claimants are increasingly turning to data protection as a tool for use in litigation, either as the subject matter of the litigation or as a means of obtaining evidence for use in another cause of action. As a result of this trend, the English courts are frequently faced with novel questions about the use of data protection law in the context of litigation.

The facts

In HH Prince Moulay of Morocco v Elaph Publishing [2017] EWCA Civ 29, the Court of Appeal was asked to determine whether claims for publishing inaccurate personal data under the Data Protection Act 1998 (the "1998 Act") could be introduced within existing defamation proceedings. The appeal decision arose as a result of a claim brought by Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco (the "Prince") against Elaph Publishing Limited ("Elaph") in light of an article published on Elaph's news website in October 2014. The article alleged that the Prince sought to sabotage the image of the Moroccan King Mohammed VI using a former boxer, Zakaria Momeni, to entrap Mounir Al-Majidi, an assistant and adviser to the King.

The Prince claimed that these allegations were untrue and had caused, or were likely to cause, serious harm to his reputation. He brought a claim against Elaph under section 1 of the Defamation Act 2013. The judge at first instance ruled that although the Prince had contended that the article was inaccurate, it was not necessarily defamatory, and struck out part of the Prince's claim on that basis.

The Prince sought permission to amend the particulars of claim, including to add a new claim under the 1998 Act which: (i) stated that the article included the personal data of the Prince that was stored and processed by Elaph; (ii) contended that Elaph was the controller of those personal data; and (iii) claimed the processing was a breach of section 4(4) of the 1998 Act (arguing that the data had not been processed fairly and lawfully, and had not been kept accurate and up-to-date, as required by Schedule 1 to the 1998 Act).

The judge allowed the amendment to the Prince's claim, on the basis that: (a) there was nothing contrary to principle in allowing parallel claims under the 1998 Act and the Defamation Act 2013; and (b) it was arguable that the Prince had a principled interest in ensuring an accurate record of his political activities. Further, the judge stated that such interest might justify pursuing proceedings in circumstances where there did not appear to be any voluntary body which could provide a binding adjudication on the accuracy of the article. The Prince and Elaph both appealed elements of this decision to the Court of Appeal.

The court's decision

The Court of Appeal agreed with the first instance judge's ruling that the Prince should be allowed to amend his particulars of claim to include a further cause of action under the 1998 Act. The Court held that "the different causes of action are directed to protecting different aspects of the right to private life" and that there is "no good reason of principle why a claim under the 1998 Act cannot be linked to a defamation claim…if the test for amendment is otherwise met" (at paragraphs 43-44). In addition the Court of Appeal held:

  • The judge at first instance was correct not to attempt to identify a general principle which would apply where a claimant seeks to join claims for defamation and under the 1998 Act – this suggests that decisions to allow such claims to be joined will turn on the merits of each individual case.
  • Where a defamation claim is successfully defended, a claim under the 1998 Act may provide an appropriate alternative means of redress for the claimant.
  • However, claimants will need to consider the basis for pleading damages in respect of any data protection law claim: the Court of Appeal noted that it was not correct to treat the damage arising under the two claims as effectively the same (as was done in the Prince's amended particulars of claim).
  • Further, the Court should take a role in managing the joint claims in accordance with the overriding objective (under Part 1 of the Civil Procedure Rules 1998) to ensure that the litigation process is used to reach a just result in a proportionate manner and, most importantly, is not used to stifle criticism under the pretext of correcting inaccuracy.

Impact on businesses

This case joins a growing body of English case law in which the courts have demonstrated an increasing willingness to find ways to allow claimants to bring claims under data protection law, regardless of whether more traditional claims (such as defamation) may fail on the same facts. Given the courts', approach businesses should be mindful that potential claimants are increasingly likely to explore any data protection claims that may be available to them.

Chris Ewing, a Trainee Solicitor at White & Case, assisted with the development of this publication.