Pacini & Geyer v Dow Jones – at the interface between libel and data protection

[reposted from LinkedIn]

This is an important judgment on preliminary issues (the second preliminary issues judgment in the case – the first was on an unsuccessful strike out application by the defendants) in a data protection claim brought by two businessmen against Dow Jones, in relation to articles in the Wall Street Journal in 2017 and 2018. The claim is for damages and for erasure of personal data which is said to be inaccurate.

It is believed to be the first time in a data protection claim that a court has been required to determine the meaning of personal data as a preliminary issue in an accuracy claim.

Determination of meaning is, of course, something that is common in defamation claims. The judgment is a fascinating, but complex, analysis of the parallels between determining the meaning of personal data in a publication and determining the meaning of allegedly defamatory statements in a publication. Although the judge is wary of importing rules of defamation law, such as the “single meaning rule” and “repetition rule” a key part of the discussion is taken up by them.

The single meaning rule, whereby “the court must identify the single meaning of a publication by reference to the response of the ordinary reader to the entire publication” (NT 1 & NT 2 v Google LLC [2018] EWHC 799 (QB)) is potentially problematic in a data protection claim such as this where the claimants argue that it is not the ordinary reader they are concerned about, but a reader who might be a potential business investor.

Similarly, it is not at all clear that the repetition rule, which broadly seeks to avoid a defamatory loophole by which someone argues “but I’m only reporting what someone else said – their words might be defamatory, but mine merely report the fact that they said them”, should carry over to data protection claims, not least because what will matter in defamation claims is the factual matrix at the time of publication, whereas with data protection claims “a claim for inaccuracy may be made on the basis that personal data are inaccurate at the time of the processing complained of, including because they have become misleading or out of date, regardless of whether they were accurate at the time of original publication. In that event, what matters is the factual matrix at the time when relief is sought” (at 66).

Nonetheless, and in a leap I can’t quite follow on first of the judgment, but which seems to be on the basis that the potential problems raised can be addressed at trial when fairness of processing (rather than accuracy) arises, the judge decides to determine meaning on a single meaning/repetition rule basis (at 82-84).

There’s a huge amount to take in though, and the judgment demands close reading (and re-reading). If a full trial and judgment ensue, the case will probably be a landmark one.

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.