Jersey: Bloggers And Data Protection - New Law And Judicial Guidance In Jersey

Last Updated: 12 September 2013
Article by Fraser Robertson and Davida Blackmore

The rapidly developing social media landscape is increasingly giving rise to challenging issues particularly in respect of alleged breaches of privacy and the use and misuse of personal information.

In the case of AB & Ors v Syvret [2013] JRC 170, published this week, the Court considered for the first time in Jersey (in a civil context) the impact of the Data Protection (Jersey) Law 2005 ("the DPL") on online blog sites, together with important ancillary issues such as the tension between on the one hand the right to free speech and the right to privacy and the rights of individuals under the DPL on the other.

The case has also provided further guidance and observations on the principles relating to in private hearings and reporting restrictions. The case concerned the operation by the Respondent of a certain blog site ("the Blog") which identified a number of individuals who then became the targets of extreme allegation, comment and abuse via postings on the Blog.

Certain of the individuals ("the Representors") served Stop Processing Notices on the Respondent under Article 10 of the DPL alleging that the Respondent's actions in connection with the Blog were causing them substantial damage and distress and requiring him to cease processing their personal data.

The Respondent failed to comply with the Notices and the Representors brought the proceedings (having been provided with assistance by the Data Protection Commissioner by virtue of her powers under Article 53 of the Law) seeking orders that the Respondent should cease processing their personal data and that the material already on the Blog should be deleted.

An interim injunction was granted against the Respondent pending final resolution of the matter at substantive hearing. The Court ordered that all future hearings should be held in private as it was satisfied that if any publicity were to be given to the facts of the case (including the nature of the relief sought and the evidence given), then the object of the application would be defeated.

At the substantive hearing the Court undertook a thorough review of the DPL and the way in which it applied to those who own, operate and use blog sites.

Unusually, the Respondent chose not to engage with any part of the court process with the result that the Representors had to place before the Court every conceivable argument which the Respondent might have raised had he filed contentions or appeared at the Hearing.

There were a number of important questions which the Court had to consider for the first time in this jurisdiction in the context of the DPL including the right to free speech under Article 10 of the European Convention on Human Rights ("ECHR"), and its relationship with the rights under Article 8 (right to respect for private life), and the nature of the rights under the DPL. In the event the Court granted the relief sought by the Representors and made some important findings including:

  1. Having regard to principles of English Law, Jersey law should give a wide meaning to the term 'data' and that since posts on the Blogs were disseminated by computer they fell within the scope of the DPL;
  2. The Respondent was a "data controller" within the definition as set out under Article 1 of the DPL in that he was processing the Representors' data on the Blog;
  3. The publication of the Representors' data could not be said to be in the public interest (having regard to established English authority on point namely Campbell v Mirror Group Newspapers [2003] QB 633);
  4. The Respondent's right to freedom of expression contained in Article 10 of the ECHR had to be balanced against the Representors' right to respect for private and family life as contained in Article 8 of the ECHR. On the facts the Court was in no doubt that the right of the Respondent to freedom of expression was outweighed by the Representors' rights under Article 8;
  5. An application to the Court under the DPL could be a stand-alone application. There was no reason why a claim under the DPL should not be separate and distinct from any other cause of action such as defamation or harassment; and
  6. Given the nature of the posts on the Blog, the distress and damage suffered by each of the four Representors was 'substantial' that is to say, more than merely trivial. In particular the Court rejected the notion that damage needs to involve financial loss or physical harm in order to qualify under this head.

The Court also gave useful guidance (against the background of a subsequent indication by the Jersey Evening Post that it might wish to intervene to address the Court on reporting restrictions) as to the appropriate course to be adopted in cases where one party or the other seeks to limit the reporting of a hearing or judgment.

The Court indicated that it accepted that when it is practical for the Court to do so, it is desirable that the media should be informed in advance of any hearing where one party or another intends to apply to the Court for an Order that the proceedings or part thereof should be held in private.

The Court further noted that "the importance attached by the Courts in Jersey to ensuring that, so far as possible, proceedings in court, including the judgment of the Court take place in public and in consequence may be reported elsewhere is well established..." In this case, the Court considered that a hearing in private was necessary in order to secure the proper administration and where to have otherwise ordered would have been to defeat the entire object of proceedings.

The Court also granted certain limited redactions so as to protect the identities of the Representors.

The right to freedom of expression is not an unfettered right and the court has delivered an important judgment in this developing area of the law. It has given welcome guidance as to the application of the DPL to bloggers and blog sites, whilst also further addressing developments in relation to in private hearings and the reporting of such matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Davida Blackmore
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