Jersey: Data Protection – A Warning To Bloggers!

Last Updated: 10 March 2014
Article by Fraser Robertson

In the recent case of AB and Others v Syvret [2013] JLC 170, the Royal Court had to consider for the first time in Jersey (in a civil context) the impact of the regulatory regime in Jersey under the Data Protection (Jersey) Law 2005 (the DPL) upon online blog sites.

It further had to determine important subsidiary issues such as the on-going tension between the European Convention right to free speech on the one hand, and the Convention right to privacy and the rights of individuals under the DPL on the other. The case also led to the Court providing further guidance and observations on the governing principles in relation to in private hearings reporting restrictions, and contempt of court issues.

High Profile

The case was relatively high profile in the Island as it concerned the operation by the Respondent who was a former member of the States of Jersey (the Jersey Parliament) and who had served as a member of the Jersey Government. The Respondent has operated a certain blog site (the Blog) in which he repeatedly identified a number of individuals and alleged they had amongst other things engaged in extreme criminal behaviour. Certain of the individuals (the Representors) with the assistance of the Data Protection Commissioner, 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 seeking orders that the Respondent should cease processing the data and that the material already on the Blog should be deleted.

The Court ordered at an early stage that, notwithstanding the general importance of ensuring that proceedings in court take place in public, in the unusual circumstances of the case all the hearings should be held in private. The Court 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 for injunctive relief would be defeated.

The Court granted the injunctive relief sought and made some important findings of general application as follows:

  • The DPL extended to posts on blog sites. The Court held that Jersey law should give a wide meaning to the term "data" to include information captured and/or held in audio visual and textual file formats on computers. Since posts on blog sites were disseminated to others by computers and/or the internet it was held they fell within the scope of the DPL.
  • In determining public interest the Court had regard to establish English authority namely Campbell v Mirror Group Newspapers [2003] QB 633 before concluding that the publication of the Representors' data could not be said to be in the public interest.
  • The Respondent's right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) had to be balanced against the right to respect the private and family life under 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.
  • Although claims under the Data Protection legislation were often accompanied by claims for defamation or harassment, the Court concluded that a claim under the DPL could be a stand-alone application and it was not necessary to plead any form of ancillary claim.

Against the background of an indication by the Jersey Evening Post that it might wish to intervene to address the Court on reporting restrictions the Court gave some useful guidance as to the appropriate course to be adopted in cases where a party sought to limit the reporting of a hearing or judgment. The Court indicated that as a matter of course, when it is practical to do so, 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 should be held in private and that often it should be the court that should so alert the media.

Redacted Form

As to publication of judgment, the Court endorsed the growing practice of the Court publishing in redacted form its judgments, even in circumstances where the hearing may have been held in private. The Court accepted the observations of the Data Protection Commissioner that there was a likelihood of similar cases relating to publications on blog sites arising in the future, and that guidance from the Court as to the general principles in this area would be of assistance. It therefore authorised the publication of redacted judgments.

Notwithstanding the clear terms of the injunction to cease processing and to remove the offending material from the Blog, the Respondent failed to do so and indeed had made clear in comments when interviewed by certain media that he had no intention of removing the material and had even indicated an intention to publish further postings on his Blog in contravention of the Court orders.

The Court accepted that the test in determining whether an alleged contemnor had been guilty of contempt was an objective one while although intention was relevant to the question of penalty. The Court found that the respondent had deliberately and persistently breached the Court orders, and confirmed that it was appropriate for a custodial sentence to be imposed for "a blatant and aggravated contempt" particularly in cases where the contemnor had been warned as to the potential consequences of defying an order. On that basis the Court concluded that a custodial sentence was inevitable and sentenced the Respondent to three months imprisonment.

Freedom of Expression

The right to freedom of expression is clearly an important one and can take many forms, particularly in light of fast moving developments in the various forms of social media outlets. The right clearly however is not and cannot be an unfettered one and the Royal Court in a series of judgments has brought some clarity and guidance to the application of the Law in this area and in particular in relation to publications on blog sites. In so doing it has also given further guidance as to questions of reporting restrictions, and redaction of judgments, and laid down a clear marker as to the gravity with which the Royal Court views blatant breaches of court orders. The impact of these judgments, and indeed the McAlpine affair in the UK in relation to postings on Twitter, upon future conduct in relation to the use of social media will be of considerable interest.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions