Electoral leaflets and the data protection principles: Eady J refuses to be absurd

Jeremy Phillips

The recent Queen’s Bench Division decision of Mr Justice Eady in Quinton v Peirce and Cooper [2009] EWHC 912 (QB), ostensibly a malicious falsehood action involving a local election in Woodcote, Oxfordshire, turned out to have some important repercussions for the uses to which Data Protection Act protection is deployed in British litigation.

Quinton, the Conservative candidate in local elections, was defeated by the previous incumbent, the Liberal Democrat candidate Peirce. He sued both Peirce and Peirce’s election agent Cooper in respect of an election leaflet which, he said, contained factually false statements about him which were published maliciously and infringed two principles in the Data Protection Act 1998: the requirements for fairness and accuracy.

Eady J dismissed the action, concluding that the statements in question were not particularly false and were not made maliciously (malice being a more severe concept than mere dislike). More to the point, he considered that it was neither necessary nor proportionate to interpret the Data Protection Act in such a manner as to afford a set of parallel remedies when damaging information had been published about someone which was neither defamatory nor malicious. Even if the offending material constituted “data”, and Peirce and Cooper could be construed as “data controllers”, neither of the data protection principles had been infringed. The judge’s comments, at paras 87 to 94, are instructive:

“87. … I am by no means persuaded that it is necessary or proportionate to interpret the scope of this statute so as to afford a set of parallel remedies when damaging information has been published about someone, but which is neither defamatory nor malicious. Nothing was cited to support such a far ranging proposition, whether from debate in the legislature or from subsequent judicial dicta.

88. Still less am I persuaded that it is necessary or proportionate so to interpret it as to give a power to the court to order someone to publish a correction or apology when the person concerned does not believe he has published anything untrue. Such a scheme could surely only work in respect of factual statements which could be demonstrated uncontroversially and objectively to be false. It cannot be intended to compel publication of an account of a factual scenario which is capable of being understood in different ways if, on one interpretation, it might not be accurate.

89. Parliament rejected such a draconian step when addressing the remedies to be made available under the summary judgment regime contained in ss.8–10 of the Defamation Act 1996. The Act stops short of that. Where the parties are unable to agree the steps to be taken, a judge can order the defendant, at most, to publish a summary of the court’s ruling: s.9(2). He or she cannot be compelled to adopt or endorse it.

90. The legislature declined to provide for a power to require editors to publish corrections or factual accounts which they do not accept as accurate. This was for the same reasons as are contained in the reports of the Committee on Privacy and Related Matters (the Calcutt Committee, 1990 Cm. 1102) at para. 11.4 and the Supreme Court Procedure Committee on Practice and Procedure in Defamation (the Neill Committee, 1991) at XVII 3–4. It would be surprising if only about two years later the legislators were prepared to provide for compulsion in such circumstances without that being unequivocally made clear.

91. Mr Warby’s argument is founded upon s.14, which provides for an order to “rectify, block, erase or destroy” inaccurate data. Indeed, any data “which contain an expression of opinion which appears to the court to be based on the inaccurate data” can also be made the subject of such an order. These remedies appear to be available independently of any claim for compensation …

92. As to the substance of the matter, I am prepared to proceed on the assumptions that the offending material was personal data and that both Defendants were data controllers. But I would not accept (assuming the statute to apply to the leaflet) that there has been an infringement of either of the principles requiring accuracy and fairness. As to the former, I see no reason to apply different criteria or standards in this respect from those I have applied when addressing the tort of injurious falsehood. It follows that I do not need to address the “reasonable care” defence under s.13(3).

93. One suggestion was that, in order to comply with the obligation to be fair, Mr Peirce should not have “processed” this information without notifying Mr Quinton in advance. This proposition was based on Part 2 of Schedule 1 to the Act, paragraphs 2 and 3, which contain a “fair processing code”. I decline, however, to interpret the statute in a way which results in absurdity. Plainly, it cannot have been the intention of the legislature to require electoral candidates to give their opponents advance warning each time reference is to be made to them in a document that happens to be computer generated. Yet that would appear to be the consequence of Mr Warby’s argument.

94. In the event, for the reasons I have already given, I do not make any finding of substantial inaccuracy or of unfairness. I am fortunate, therefore, not to have to grapple with the possible statutory meaning of rectification. I should have been at a loss to know how I could possibly order Mr Peirce to publish Mr Quinton’s version of events baldly and without explanation or comment”.

Leave a Reply

Your email address will not be published. Required fields are marked *