Interim injunction – malicious falsehood – Bonnard v Perryman – data protection – order under s10 DPA.
Al-KO Kober Ltd & Anor v Balvinder Sambhi
Reference:  EWHC 2474 (QB)
Court: High Court (Queen's Bench Division)
Judge: Whipple J
Date of Judgment: 6 Oct 2017
C1 was the UK based part of the business of Al-Ko VT, a leading brand in the towing and trailer industry. Two particular products, the AKS1300 and the AKS3004, formed part of the Company’s stabiliser range for use when towing caravans. C2 was C1’s marketing manager. D had developed a product which he referred to as “the Torquebar”.
D had made 84 videos which referred to the AKS stabilisers, to C1 and to C2, in various ways which were derogatory, of the stabilisers, of C1 and of C2. The videos were shown on D’s Torquebars YouTube channel.
In May 2017, C1 first became aware of D’s videos. The viewing figures were low, and C1 took no legal action. On 19 May 2017, C2 telephoned D to ask him to remove the videos from his YouTube channel, suggesting that the videos reflected badly on C1 and contained statements and suggestions which were not true.
D called C2 back on 22 May 2017, and recorded this conversation without asking C2’s permission (“the Recording”). C1 instructed Wright Hassall, solicitors, to advise. Following an exchange of correspondence, more videos started to appear on the Torquebars channel.
By August 2017 there were videos appearing which suggested that C2, C1 and/ or its products were a “killer”; meanwhile the videos were getting increased numbers of viewings, with one video (which referred to C1 conducting a “scam”) recording thousands of viewings.
Following further correspondence, further videos were posted which were personal in tone, referring to C2 and the Cs’ solicitor in terms which were highly offensive, alongside continued criticism of C1 and its products. D was also using extracts from a trade fair video in which C2 was shown speaking about the AKS stabilisers (“the Trade Fair Footage”).
The Cs issued an application for (1) an interim injunction in malicious falsehood in favour of C1, and (2) an order in favour of the C2 pursuant to section 10(4) of the Data Protection Act 1988 (“the DPA”) requiring D to cease processing C2’s personal data.
1. Should C1 be granted an interim injunction in malicious falsehood?
2. Should C2 be granted an order pursuant to section 10(4) DPA?
Granting an interim injunction in favour of C1 and an order pursuant to s10(4) DPA in favour of C2:
1. The Judge was bound by the rule in Bonnard v Perryman, which applies equally to claims of malicious falsehood. The Judge therefore had to be satisfied that no judge or jury could reasonably conclude that the statements made by the Defendant were true. In doing so, the Judge was not bound simply to accept the Defendant’s assertion that they are true and leave the matter to trial: Sunderland Housing Company Ltd and Anor v John Baines and Ors  EWHC 2359 (QB).
There was no issue as to whether the words referred to C1.
As to special damage, C1 relied on s3 of the Defamation Act 1952. In this regard, a party must show that the statement of which complaint is made is more likely than not to cause him pecuniary damage. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs. D did not suggest that the effect of his statements would not be to put off some potential customers, and his avowed specific purpose in publishing these statements was to do precisely that.
As to falsity, the Cs identified meanings which could be attributed to each of the videos which were the subject of the application, which concerned alleged misconduct by the Cs and deficiencies in the AKS stabiliser products. D argued that the Cs had lied in making guarantees about the products, and that each had acknowledged those lies. This lie, D said, was a deceit on C1’s customers and justified (as true) the various statements that D had made in his videos. None of the assertions about the product amounted to a guarantee, and the whole of D’s case appeared to be built on a false premise. No judge or jury, properly directed, could reasonably conclude that D’s various statements could be true. Nor was there any evidence at all to support C1’s claim that the products were defective, and C1 had provided the Court with evidence to demonstrate that its products were safe.
As to malice, there were features of the case which pointed to D having improper motives in publishing the material he did. However, in light of the conclusion that the statements were untrue there was no need to reach any conclusion on this issue. D would understand, from the judgment, that the statements he made in the videos were false. Any future publication of those videos (or any other similar videos which he may make in the future) would undoubtedly be malicious, and would amount to the tort of malicious falsehood.
2. For the purposes of s10 DPA, C2 had given notice in writing to D to require him at the end of such period as is reasonable in the circumstances to cease processing his personal data. None of the relevant exceptions applied.
D resisted the data subject notice on the basis that (he said) the data in question was already in the public domain. There is no public domain exception to s10 of the DPA. D’s refusal to comply with the data subject notice was therefore not justified.
C2 had suffered substantial damage and distress as a result of the processing of his personal data by D, in the various uses to which D had put the Recording, the Trade Show Footage, and other images of C2. This was an appropriate case in which to order D to take steps to comply with the notice, and he was required to cease processing any personal data in respect of which C2 was the subject.
Both orders sought by the Cs were unusual. The effect of the rule in Bonnardis that interim injunctions are rarely granted in libel or malicious falsehood cases. However, where, as here, a defendant advances no coherent case on the truth of the statements in question, then a claimant may be able to overcome the high threshold the rule creates. The Judge then overcame the particular difficulties of making a finding on malice at the interim stage by focusing on D’s state of mind were the publications to continue in the future, after it had been held that the statements he made were false.
Given the relatively wide range of exemptions available under the DPA, particularly s32 which applies to journalism, art and literature, it is rare for a defendant to insist on a right to continued processing on the basis of a justification which is not available in the DPA itself. Where he does so, an order to cease processing personal data altogether may be more appropriate than a narrow injunction providing for compliance with a notice under s10 DPA.
Originally reported here: http://www.5rb.com/case/al-ko-kober-ltd-anor-v-sambhi/