Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars)

An interim injunction may restrain publication of an allegedly malicious falsehood where the defendant’s justification is plainly incapable of succeeding. The court need not accept an unsupported assertion that the statements are true. The defendant must explain the evidential basis of that assertion sufficiently to show that falsity may be controverted at trial.

Where a publisher has been shown that statements are false, any future republication may be malicious. Under section 10 of the Data Protection Act 1988, there is no general public-domain exception to a notice requiring cessation of processing personal data. The court may order compliance where substantial, unwarranted damage or distress is established.

The claimants sought urgent interim relief concerning videos published on the defendant’s YouTube channel. The First Claimant alleged malicious falsehood in statements that its caravan stabilisers were defective, unsafe, fraudulent and responsible for accidents. The Second Claimant sought an order under section 10(4) of the Data Protection Act 1988 requiring the defendant to cease processing his personal data.

The defendant asserted that the videos were true, relying principally on alleged inconsistencies in descriptions of the stabilisers’ ability to prevent snaking. He had provided no witness statement or supporting evidence. The issues were whether the statements were plainly false for interim purposes, whether future publication would constitute malicious falsehood, and whether the statutory conditions for a data-processing order were met.

1. Malicious falsehood. The court applied the rule in Bonnard v Perryman, extended to malicious falsehood by Bestobell Paints Ltd v Bigg. An injunction could be granted only if no judge or jury could reasonably conclude that the statements were true. The claimant also had to establish publication, reference, malice and the relevant damage requirements.
2. The defendant had not filed evidence or explained any proper basis for his assertion of truth. The alleged contradiction about whether the stabilisers prevented snaking was based on a false premise. The descriptions were broadly consistent and conveyed that the products helped to prevent snaking, not that they guaranteed prevention. The statements were therefore plainly untrue.
3. The court left malice concerning past publications undetermined. However, after the defendant understood from the judgment that the statements were false, any future publication of those videos, or similar videos, would necessarily be malicious. The reasoning was consistent with Kaye v Robertson.
4. The interim injunction was justified despite its interference with freedom of expression. The First Claimant’s application was granted pending trial or further order.
5. Data protection. The defendant had failed to justify non-compliance with the data subject notice. The fact that material was already in the public domain was not an exception to section 10 of the Data Protection Act 1988. The evidence established substantial and unwarranted damage and distress caused by the processing of the Second Claimant’s personal data.
6. The court ordered the defendant not to process, further process, or cause or permit the processing of any audio recording, video recording, still photograph or other information amounting to the Second Claimant’s personal data, including by disclosure to the public. The application was allowed in both limbs.