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.

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