UK: Data Protection: a Privacy Law by any other Name?

Last Updated: 15 April 2003

Unless you have spent the last few days on a desert island, you will be aware that the judgment in the case brought by Michael Douglas and Catherine Zeta-Jones against Hello! has, like their OK! Magazine wedding exclusive, now been widely publicised (Douglas and Others v Hello! And Others [2003] EWHC 786).

Case Comment

The Douglases and the publishers of OK! Magazine won their breach of confidence claim against Hello! for publication of surreptitiously-taken photographs of the Douglases’ New York wedding. One aspect of the case which has received less attention is the fact that the Douglases were also awarded compensation for damage and distress under the Data Protection Act 1998 (the "Act"). The level of damages under the Act is expected to be fixed at a subsequent hearing but is described in the judgment as "nominal".

For data privacy commentators the subsidiary role given to the Act is a little disappointing since, in some respects, the Act provides more versatile ‘privacy’ protection than the law of confidence; certainly the Act is capable of providing redress in circumstances where no duty of confidence arises.

The Data Protection Act Analysis

The court held that the unauthorised wedding pictures were personal data, that the Hello! defendants were data controllers and that therefore the publication of the pictures in England was processing by Hello! which was bound by the Act's requirements.

In his judgment Mr Justice Lindsay stated "when a data controller is responsible for the publication of hard copies [i.e., the Hello! magazines] that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the process and falls within the scope of the Act".

Hello! argued that their publication of the unauthorised photographs fell within the wide journalism exemption under section 32 (recently deployed successfully against Naomi Campbell in the Court of Appeal – Campbell v MGN Ltd [2002] EWCA Civ. No. 1373 – click here for the Data Privacy Newsflash on this case on 17 October 2002). This was roundly rejected as the Judge found no credible evidence that Hello! had the necessary belief that publication was in the public interest, particularly given the photographs were obtained by a trespassing paparazzo and Hello! knew OK! was about to publish a wedding exclusive. Mr Justice Lindsay commented "[t]hat the public would be interested is not to be confused with there being a public interest."

An unsuccessful argument by Hello! that their processing was covered by a transitional exemption confirms the narrowness of this exemption, which requires processing to have been already under way immediately before 24 October 1998. The Judge held that "already under way" suggested a continuous process from 24 October 1998 "as would be the case where, for example, running a bank account was processed both before and after that date". He went on to find that "photographs even of the same subjects are quite separate items of personal data in a way that, say, operations on a running bank account, where the balance at any time is dependent upon the cumulative effect of earlier transactions, are not."

The Act’s first principle, requiring processing to be fair and lawful, was held to have been breached by Hello! on two main grounds. First, the surreptitious manner in which the photographs had been obtained was not fair. Second, none of the conditions in Schedule 2 prescribed for fair and lawful processing had been met. As for the condition at paragraph 6(1) of the Schedule (which requires processing to be necessary for legitimate interests of both the data controller and the data subject, giving priority to the latter), the court held that Hello! had a legitimate interest in publishing details of the Douglas wedding in their magazine, however, in the circumstances publication was found to be unwarranted by way of substantial prejudice to the legal rights of the Douglases.

The judgment also concluded that, despite Hello! having no defence to the Douglases’ claim to compensation under section 13 of the Act, any damage or distress which occurred was not by reason of any contravention by a data controller of any of the requirements of the Act (which is necessary for the right to compensation to arise).

This part of the judgment is hard to follow and, with respect, it is doubted that it is correct. The test applied by the Judge was: "if the obligations under the Act had been performed would it truly have made any difference?" Mr Justice Lindsay went on to state that "it is only if deployment by Mr and Mrs Douglas of the data protection argument would have caused the Hello! Defendants, on consent being refused to them, to elect not to publish the unauthorised pictures … that it could reasonably be said that the damage and distress occasioned to the Douglases was by reason of a contravention of the Act – section 13". The Judge’s conclusions in what he conceded was a speculative exercise were that Hello! would have elected to go ahead and publish in any event (therefore damage did not flow from the breach of the Act).

The above analysis overlooks the fact that Hello! contravened the Act not only because they did not have the Douglases’ consent to publish but because, more generally, the requisite fairness and lawfulness were lacking. It could be argued that it was this general lack of fairness and lawfulness which caused damage and distress to the Douglases. Further, if the court’s more limited approach were the correct one then it would severely limit the right to compensation under the Act.

The clue to the real reason for the "nominal award" is likely to lie with the Judge’s finding that he did not "see [the Act] as adding a separate route to recovery for damage or distress beyond a nominal award…" In so doing Mr Justice Lindsay was essentially trying to make breach of confidence and breach of the Act two alternative bases for the same award of damages – the approach Mr Justice Morland took at first instance in the Naomi Campbell case (Campbell v MGN Ltd [2002] EMLR 617).

Is There A Future for Data Protection Act Damages?

It is possible to interpret the Douglas judgment as limiting the compensation available under section 13 of the Act to nominal amounts (particularly where, on the same facts, damages are awarded by the court for breach of confidence) but it is suggested that this is not the correct approach. Leaving aside the desirability of preventing double recovery by a claimant, there is no reason why the level of compensation available under the Act cannot be substantial, depending on the facts.

"Privacy" - A New Law Coming Soon to English Courts?

The judgment is as interesting for the law it does not make as for the law it confirms. In dismissing the Douglases’ claim for breach of privacy, Mr Justice Lindsay confirmed there is no free-standing or ‘sui generis’ law of privacy in the UK. Obiter remarks in the judgment appear to have fuelled speculation that the courts will soon be called upon to do what the legislature has failed to accomplish in terms of protecting privacy but this may be based on a misconception as to the current state of the law.

Mr Justice Lindsay’s judgment leaves unanswered the question of whether the Act (in force since 1 March 2000) could provide an effective remedy in circumstances where UK law has been found wanting in the past. One such situation referred to in this judgment was the case of Peck v UK (The Times, 3 February 2003 – click here for the Data Privacy Newsflash on 4 February 2003) in which the European Court of Human Rights held that the UK had failed to provide Mr Peck with an effective domestic legal remedy for violation of his right to respect for his private life, as guaranteed by Article 8 of the European Convention on Human Rights.

The facts of that case were that unauthorised publications and broadcasts had been made of CCTV footage showing Mr Peck - clearly identifiable from the images - walking along a street in Brentwood in 1995, suicidally depressed and carrying a large knife. In those circumstances there was no duty of confidence, as Mr Peck was filmed walking along a public street.

If the facts of Peck arose now, there is a good prospect that the Act (and, in particular, the compensation right) would provide Mr Peck with an effective remedy. One argument would go as follows (applying the legitimate interests condition from Schedule 2 of the Act): although distribution of the footage might be for the purposes of a legitimate interest i.e., promoting the effectiveness of CCTV as a crime deterrent, showing identifiable images of Mr Peck in a confused, suicidal and distressed state to thousands of viewers would be unwarranted and prejudicial to his right to respect for his private life, particularly because promoting awareness of CCTV could be achieved without revealing Mr Peck’s identity. Under section 13 of the Act, Mr Peck would be entitled to compensation for any damage he suffered "by reason of any contravention" of the Act by the data controller.

This leads to the conclusion that UK law may now provide adequate redress for privacy breaches where no duty of confidence can be implied. And the name of this law? The Data Protection Act 1998.

Article by Kate Brimsted

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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