Defamation And Data Protection: A Twin-Barrelled Approach To Claims Against Publishers

In the recent case of Prince Moulay Hicham v Elaph Publishing Limited, the Court of Appeal held in a unanimous decision that a claimant could include an action under the UK Data Protection Act 1998 ('DPA') as an alternative means of redress. This case will strengthen the hand of individuals who wish to complain about inaccurate information that is published about them, and may enable them to succeed in a claim where the publication is not even defamatory.

Background

Elaph Publishing Limited ("Elaph") produces an online Arabic newspaper. In October 2014, it published an article about Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco. The article said that the Prince had met with a former Moroccan boxer to urge him to raise a case against a close aide of the King of Morocco on the basis that the aide had made death threats. The Prince complained about the article the day after publication and it was removed. The Prince issued a libel claim the following day.

The judge at first instance deemed the words in the article 'incapable' of being defamatory, on the basis that it was not defamatory of someone to say they are working against the interests of a ruler. The Court of Appeal, however, overturned this judgment on the basis that what was outlined in the article was more than simply disloyalty or agitation for reform, and that the words used were capable of bearing the meaning that the Prince had shown himself to be "devious, underhand and disloyal".

The DPA Claim

At first instance, the judge had allowed the Prince to amend his claim to add a concurrent claim based on the DPA. On appeal, Elaph submitted that a claimant should only be permitted to advance a defamation claim and DPA claim in the same proceedings if the court is satisfied that its resources are being used appropriately, and that the DPA claim would be a necessary and proportionate interference with the defendant's right to freedom of expression. In this case, the interference did not seem necessary or proportionate, given that the article was removed quickly and there was no risk of future publication. Elaph noted that there could be far-reaching consequences if DPA claims were allowed to proceed in respect of factual inaccuracies in the context of political debates.

The Prince submitted that, while the libel claim and the claim under the DPA were distinct and separate grounds, the weaker the libel claim, the more important it was that a claim under the DPA could be advanced.

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