"The Data Protection Act is increasingly being deployed as part of a claimant's arsenal in defamation claims." (Robin Hopkins)
A recent Court case concerning Stuart Syvret raises a number of concerns. The case centred on his blog, and accusations which were considered defamatory. The usual course of action, you might imagine, in cases of defamation is to sue. That is, after all, the action that was taken by Senator Frank Walker when various accusations were being made about him regarding allegations of wife-beating. The Telegraph reported the story:
"Frank Walker - a senator of the island's governing body and, as president of its powerful Finance and Economics Committee, its equivalent of Gordon Brown - was, the rumour went, a serial wife-beater. Now a full-page public apology in the local newspaper announces that two prominent local men are sorry they ever suggested such an untruth. One of them is Leslie Norman, a successful accountant. The other, Francis Amy, chairman of the island's Constables Committee which runs its volunteer police system, has apologised further, for falsely alleging that Senator Walker abused his office by taking "improper and corrupt inducements". (1)
Frank Walker took legal action, because this kind of untruth would be considered slander or libel (if in print) and that was the legal avenue to pursue when people were defamed. Although they lost their action, the same due process of law was followed by Trevor Pitman and his wife when they considered themselves defamed.
In this case, the Court Judgment noted:
"Mr Syvret set up the Blog in January 2008. The four representors are amongst those who have been repeatedly identified by name on the Blog as having, amongst other things, engaged in criminal behaviour." (2)
So the cause of libel for defamation would have been the same. But in this case, none of the people involved pursued that kind of claim. Instead, they side-stepped that route by getting the Data Commissioner to treat the accusations as violations of the Data Protection Law. The result was that the tax payer stepped in to pursue the case on their behalf.
"The case for the representors is that Mr Syvret is a "data controller" within the meaning of the DPL and that he has processed their personal data by uploading, publishing and storing false and offensive posts on the Blog. The representors contend that the allegations made about them on the Blog are untrue and unjustified." (2)
The critical argument was as follows, following Carter-Ruck:
"It appears to us that Jersey law should give a wide meaning to the term "data". Since posts on the Blog are disseminated to others by computers and/or the internet, we consider that posts on blogsites fall within the scope of the DPL."
While Stuart Syvret has certainly made hostile opinions about individuals, matters of opinion as well as matters of fact are now being drawn into the scope of data under the Data Protection Law:
"It is to be noted that data includes "any expression of opinion about an individual". We have noted the hostile and abusive opinions expressed by Mr Syvret on the Blog."
This would certain run counter to the UK where the information commissioner takes a very different initial view regarding opinions given on the "Solicitors from Hell" website:
"The Information Commissioner responded that the DPA was not designed to deal with such issues and that it was "not the purpose of the DPA to regulate an individual right to freedom of expression - even where the individual uses a third party website, rather than his own facilities, to exercise this.""((4)
What makes matters worse is that the whole case was shrouded in secrecy. You have only to look at libel cases in the past - Olga Johnson against Donald Lucas, or that or Mr and Mrs Pitman against the JEP - to see that the treatment of the case is conducted in public, with witnesses, documentation, etc all presented in a transparent manner. Justice could be seen to be done.
But in this case, justice is enfolded in secrecy. According to the Court records which are available,
"This was a case where we are quite satisfied that if any publicity were to be given to facts of the case (including the nature of the relief sought, the evidence given and the terms of the present judgment), the object of the application would be defeated. This means that no reporting of any part of the proceedings is permissible".
But this was a judgement given on 13th June, 2013, yet on 18 Sep 2012, John Hemming spoke about the matter in the House of Commons, where it is a matter of public record, protected by Parliamentary Privilege. This should have been known to those involved, including the judge.
It should be noted that the House of Commons Hansard cannot be subsequently redacted to remove names, as can happen here after recent changes in Jersey law. Hemmings stated:
"Bloggers are being threatened to stop them talking about people. Decisions by the state not to prosecute cannot be challenged, nor is private prosecution allowed. The country is Jersey. The journalist is Leah McGrath Goodman, who is an American. The chief of police was Graham Power. Furthermore, [names redacted by myself] have, with the assistance of the Jersey Government, obtained a super-injunction against ex-Senator Stuart Syvret-under the Data Protection Act of all things-to prevent from him saying things about them on his blog that are true. Mr Syvret has evidence that criminal offences are being swept under the carpet, but nothing is being done."
It may seem that the case of Stuart Syvret is an extreme case, where the Data Protection Commissioner was right to pursue the matter, although having no evidence available - as for instance in Olga Johnson versus Donald Lucas - we have no way to know, apart from general arguments that bloggers may be considered processors of personal data under the Jersey Data Protection Law.
We also have no idea of the costs involved, but this route, which circumvents traditional approaches for libel, is obviously very useful for those who consider themselves - perhaps rightly - to be maligned because they no longer have to pursue matters at their own expense, but can expect the State to pick up the tab.
Ominously, the judgment also notes that:
"I understand that in the present case the Data Protection Commissioner has indicated that she considers it to be likely that similar cases to the present may arise in future and that guidance from the Court as to the approach to be adopted would be welcome."
Returning to the UK, The "Solicitors from Hell" website, despite the judgement of the information commissioner was taken to court. The court judgment was that:
"The court held that the Defendant was a data controller of personal data (including sensitive personal data) relating to the solicitors in question and had processed this data "in a grossly unfair and unlawful way by, in particular, [.] publishing highly offensive defamatory allegations about these solicitors and other individuals on the Website.""
As lawyers Ashley Hurst and Jack Gilbert note (on The International Forum for Responsible Media Blog):
"The ruling in the Solicitors from Hell case is potentially very significant, as it leaves the door open to potential defamation complaints dressed up as complaints under the DPA being made directly to the ICO."
It appears that the same practice is now being followed in Jersey Courts.
And Hurst and Gilbert note the potential advantages of this in gaining silence before claims have been tested in the courts:
"Ordinarily, a claim brought under the DPA alone will not be cost effective. Whilst such claims can be more straightforward than libel claims, awards for damages are usually small when compared to a successful claim for libel and a complaint to the ICO will not result in an award of damages at all. The real advantage of bringing a claim under the DPA lies instead in the alternative remedies that it can offer to claimants seeking alternative relief"
"Perhaps the most useful remedy that a claim under the DPA can provide, however, is the ability to obtain an interim injunction. It is a long-established rule in defamation law, dating back to 1891 (in the case of Bonnard v Perryman  2 Ch 269), that a court will not grant a claimant an interim injunction where the defendant expresses a bona fide intention to defend the claim."
"For claims brought under the DPA, however, quite the opposite is true. Indeed in many circumstances it will be of the utmost importance that a defendant is prohibited as soon as possible from continuing to process data in a way that is inconsistent with the DPA. Employing such a remedy in a defamation context can therefore provide a claimant with a powerful remedy that would not be available under traditional libel proceedings."
While we all want protection for our reputations online, should it be at the expense of tax payer funded and secret court proceedings, where matters of opinion as well as matters of fact can be silenced?
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