Headline news – data protection steps in to fill gap in defamation law

Background

On 8 and 9 June 2023, Associated Newspapers Limited (ANL) published articles on Mail+ and in the Daily Mail about two Labour donors. One of the donors was accused of sexual harassment. The other was Dale Vince, the green energy entrepreneur, who had very recently attended a Just Stop Oil protest. In the articles, ANL had published pictures of Mr Vince at the protest, alongside the headline "Labour repays £100,000 to sex pest [or sex harassment] donor".

The caption of the photographs in the articles stated that they were of Mr Vince, but the "sex pest" or "sex harassment" donor in the headlines was referring to the other Labour donor, not Mr Vince. The text of the articles themselves made it clear that Mr Vince was not the donor in question.

The photographs of Mr Vince were removed from the Mail+ article around 47 minutes after it was published online. The Daily Mail print article was published with the photographs the next day and remained available online on PressReader until October 2023.

IPSO complaint and libel proceedings

In the first instance, Mr Vince complained to IPSO, but after that complaint was rejected, his solicitors wrote a letter before action to ANL for libel and unfair processing under the UK GDPR. On 2 October 2023, Mr Vince issued libel proceedings in relation to the articles on the basis that the headline and photographs were defamatory of him.

The libel proceedings were struck out by the High Court on the well-established principle in Charleston v News Group Newspapers that a claim in libel must be based on the meaning of the article as a whole, rather than selected parts, such as the headline. ^[2] His Honour Judge Lewis held that, when taken as a whole, the articles were not defamatory of Mr Vince, as they explained that the headline was referring to the other Labour donor.

Data protection claim

Anticipating that his libel claim might fail, Mr Vince issued a separate claim on 6 June 2024 in the High Court for unfair processing of his personal data, relying on:

• Article 5(1)(a) of the UK GDPR, which requires personal data to be used "lawfully, fairly and in a transparent manner"; and
• Article 82, which affords claimants a right to receive compensation for damage suffered as a result of an infringement of Article 5.

ANL issued an application for summary judgment and/or strike-out of the data protection claim. In response, Mr Vince also issued an application for summary judgment of the claim.

High Court decision

Mr Justice Swift struck out Mr Vince’s claim for unfair processing on the basis that it was an abuse of process and entered summary judgment for ANL.

Swift J considered the principle in Henderson v Henderson, ^[3] i.e. that a claim that raises matters that have been the subject of earlier litigation should be struck out as an abuse of process. He found that it did not apply, as Mr Vince’s data processing claim was brought before the determination of his libel claim. Yet he concluded that the Henderson principle was only one aspect of the court’s powers under CPR Part 3.4(2)(b) on abuse of process, and that the unfair processing claim was still an abuse of process, as it should have been brought at the same time as the libel claim, given that they arose out of the same event and neither was legally or factually complex.

In entering summary judgment for ANL, Swift J applied the Charleston principle to his fairness analysis, holding that as the articles as a whole were not misleading, Mr Vince’s data had been processed fairly, and so there was no prospect that Mr Vince would succeed on his claim.

Appeal

Mr Vince appealed the judgment on two grounds:

1. The judge had been wrong to find that the claim for unfair processing was an abuse of process, and he was right that the Henderson principle did not apply, and that, in accordance with Orji v Nagra, ^[4] it was a binding decision that the Henderson principle could not be applied, as there had not been a relevant determination in Mr Vince’s defamation claim at the time he brought his data protection claim.
2. Mr Vince should have been awarded summary judgment in his unfair processing claim, as the judge had wrongly applied Charleston and should instead have applied a three-stage test (following Johnson v Medical Defence Union), asking: (a) whether the processing fell within what the data subject might reasonably have expected; (b) if it did not, what rights or interests of the data controller or processor or members of the public were engaged; and (c) whether those rights outweighed the reasonable expectations of the data subject, having regard to the harm caused by the data processing in question. ^[5]

Court of Appeal decision

Sir Geoffrey Vos, Master of the Rolls, gave the leading judgment, with which Lord Justice Warby and Lady Justice Whipple agreed.

First ground: appeal against strike-out

The Court of Appeal found that ANL's contention was right that the Henderson principle theoretically applied. Yet it did not agree that it was an abuse of process. The court applied the merits-based approach advocated in Johnson v Gore-Wood, ^[6] noting that it was "not 'necessarily abusive' to fail to raise a matter that could have been raised in prior proceedings".

Taking into account the facts of the case, and the public and private interests involved, the court did not consider that Mr Vince was misusing or abusing the process of the court in bringing his data protection claim just before judgment was handed down in his defamation claim. It was a relevant consideration that Mr Vince had raised the data protection claim from the outset with ANL, which had been dismissive of the claim. The court considered that Mr Vince had not proceeded with pursuing the data protection claim alongside his claim for libel as a result of legal advice and acknowledged that it is a novel claim that has not previously been successful in the courts. Mr Vince pursued the claim after changing counsel and, as ANL is a well-resourced publisher that is used to litigation, the court held that it was not oppressed by this course of action. In the circumstances, the court found that there was no real difference between applying to amend his libel claim and bringing the data protection proceedings separately.

Accordingly, the court allowed Mr Vince’s appeal against the strike-out of his claim.

Second ground: unfair processing

The court considered the concept of fairness in data protection law, noting that, in her dissenting judgment in Johnson, Lady Justice Arden had said that the word implies a "balancing of interests". So, to use personal data fairly, the court considered that a data user must act proportionately, taking into account its own interests, the interests of the data subject and the public interest, which was consistent with the ICO’s 2024 journalism code of practice. ^[7]

The court rejected the contention that there should be a generally applicable test for assessing unfair processing, as it considered that the context in each case was likely to be highly relevant.

The court recognised that there was some authority for applying the Charleston principle to a claim for inaccurate data processing, but that did not mean that it necessarily applied to unfair processing claims, as in Mr Vince’s claim. In particular, when assessing the applicability of Charleston, the court looked at IPSO’s Editors' Code of Practice, which it noted it was obliged to consider under section 12 of the Human Rights Act 1998. Clause 1(i) of the Code on accuracy provides that: "The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text" [emphasis added].

Evidence from the Daily Mail's night editor Andrew Gregory explained that the articles about Mr Vince and the other Labour donor had been combined due to space constraints in the paper, and that Mr Vince’s attendance at a protest that day justified the use of his photographs. The court found it instructive that the evidence made it clear that the decision to use Mr Vince’s photographs alongside the provocative headlines about the other Labour donor was not a mistake.

The court decided that, irrespective of whether the headline and photographs were inaccurate, they were unfair in accordance with clause 1(i) of the Code, as they created a misleading impression about Mr Vince to readers (many of whom may not have gone on to read the full articles).

The fact that IPSO had rejected Mr Vince’s complaint was found to be irrelevant, since IPSO had only determined a complaint about the inaccuracy of the articles, and not that the headline and photographs together were misleading.

The court also dealt with the journalism exemption under paragraph 26 of Part 5 of Schedule 2 to the Data Protection Act 2018.

• Paragraph 26(3) provides that Article 5(1) of the UK GDPR (i.e. on fair processing), does "not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible" with the purposes of journalism.  
• Paragraph 26(2) states that paragraph 26(3) applies in relation to data processing for the purposes of journalism if: "(a) the processing is being carried out with a view to the publication by a person of journalistic … material, and (b) the controller reasonably believes that the publication of the material would be in the public interest."
• Further, under paragraph 26(5), to assess whether it is reasonable to believe that publication is in the public interest, the "controller must have regard to" the Code.

The court concluded that ANL could never have reasonably believed that juxtaposing the headline to the photographs of Mr Vince in the articles was in the public interest, as it was misleading and directly contravened clause 1 of the Code. In entering summary judgment for Mr Vince, the court held that ANL had no real prospect of defending Mr Vince’s claim for unfair processing.

Comment

For years, the law in Charleston has protected editors from defamation proceedings in relation to provocative and misleading headlines and/or pictures, as long as the article itself does not substantiate the allegations and clarifies the true position.

In the modern era of online articles, many readers will only consider headlines and pictures, rather than take in an article as a whole. That is particularly true where articles are clipped in short form, so that only the headline and a small extract or summary are readable, such as when posted on social media, or where the full text of an article is hidden behind a paywall. So it has often been believed in claimant circles that the law needed to catch up.

This judgment offers claimants a way to seek redress for an unfair and misleading impression created by headlines and/or photographs in articles – even where the text of an article itself may clarify the true position. Yet it is notable that the court gave some weight to the evidence of ANL that the articles were misleading as a result of a deliberate editorial decision (relating to space constraints), rather than by mistake. Misleading headlines and photographs that arise from editorial mistakes may well continue to attract the protection of the journalism exemption in the DPA 2018 that has long been relied on by publishers to ward off data protection claims.

This decision has been made on a novel point of law and, if ANL does not appeal, it will have wide-reaching consequences for publishers. Before publishing, publishers will need to give much more careful consideration to the misleading impact that an image or headline may have on readers.

Article written for Entertainment Law Review.