Stunt v Associated Newspapers Ltd

Section 32(4) of the Data Protection Act 1998 is compatible with Article 9 of Directive 95/46/EC. It forms part of the legislative balance between data-protection rights and freedom of expression in journalism, particularly the protection against prior restraint and its chilling effect.

The automatic stay is limited. It applies only to proceedings under the Act and only so far as they concern personal data processed solely for the special purposes with a view to publication of previously unpublished material. Other claims and claims concerning already published material are not automatically stayed. The court may manage the remaining proceedings using its case-management powers.

The claimant brought claims for misuse of private information, harassment and breaches of the Data Protection Act 1998 arising from articles and the defendant’s acquisition, retention and use of personal data. The data-protection claims included compensation, subject-access relief, orders preventing processing, and erasure or destruction of data.

The defendant applied for a stay under section 32(4) of the Act. The statutory conditions were accepted to be satisfied on a literal interpretation. The claimant argued that section 32(4) was incompatible with Directive 95/46/EC and Articles 7, 8 and 47 of the Charter, and should therefore be disregarded under the Marleasing or Benkharbouche principles. The central issues were compatibility and the proper scope of the statutory stay.

1. Compatibility with EU law. Section 32(4) formed part of the substantive balancing exercise required by Article 9 of Directive 95/46/EC. Parliament was entitled to give enhanced protection to journalism before publication because the possibility of prior restraint could inhibit or delay the publication of news and produce a chilling effect.
2. The protection was proportionate and within the margin of appreciation allowed to Member States. Section 32(4) had a narrow application. It concerned only processing for the special purposes with a view to publication of new, previously unpublished material. It did not require the court to determine the public-interest and incompatibility conditions in section 32(1) before imposing the stay. Those issues could be considered after the stay was lifted.
3. The statutory scheme included an objective check through the Commissioner’s powers under section 45, although the data subject could not compel the Commissioner to make a determination and might have limited participation in the process. The limited operation of section 32(4) was also material because privacy rights were protected by other remedies, including confidentiality, misuse of private information and harassment claims.
4. Section 32(4) was not redundant merely because the court might otherwise exercise caution when considering injunctive relief. Parliament had chosen the circumstances in which protection against pre-publication restraint should be conferred, and the existence of possible relief could itself inhibit journalistic activity.
5. The Charter argument failed because Article 8 did not extend the data-protection rights conferred by the Directive. The court therefore did not need to decide whether section 32(4) could be disregarded under the Marleasing or Benkharbouche principles.
6. The stay was pro tanto. It applied only to claims under the Act and only insofar as they concerned data processed for the publication of unpublished material. The remaining claims were not automatically stayed and could be managed under the court’s ordinary case-management powers.

This was a first-instance decision of the High Court. The judgment does not state any appeal from an earlier decision.