[Sometimes I will upload posts I make on LinkedIn to this blog, because they’re easier to archive here: however they’re a bit more “conversational” than usual]
Can (or in what circumstances can) a data protection claim be brought on the basis that processing involves harm to reputation of a sort which, more orthodoxically*, would be brought in defamation?
His Honour Justice Parkes has refused an application by Dow Jones to strike out a data protection erasure claim (with an associated compensation claim) on the grounds that in reality it is a “statute-barred defamation complaint dressed up as a claim in data protection, and brought in data protection to avoid the rules which apply to defamation claims” (the application was also on Jameel grounds).
The judge says he “cannot see how [the claimants] can be summarily denied access to the court to make [their] case, employing a cause of action which is legitimately open to them… simply because in the past they have repeatedly threatened to claim in defamation, or because the claim is heavily based (as it is) on considerations of harm to reputation, or because, had they brought the claim in defamation, it would have faced very difficult obstacles”.
HHJ Parkes notably (ie this needs to go to trial) says that “the state of the law on the recoverability of damages for injury to reputation in non-defamation claims is uncertain and in flux” and that it is “unsuitable for determination on a summary application and probably requires the attention of an appellate court”.
It will be very interesting if this now makes it to trial. But never hold your breath on that folks.
[*yes, I did intend to coin the most awkward adverb possible]
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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