Stunt v Associated Newspapers Ltd

The Court of Appeal addressed the proper interpretation and compatibility with EU law of section 32(4) of the Data Protection Act 1998, which requires a stay of certain DPA claims where the data controller asserts processing is for journalistic ("special") purposes with a view to publication of hitherto unpublished journalistic material. The court held that section 32(4) must be given a purposive and restricted interpretation: the stay is confined to pre-publication processing of personal data and ceases where the material has been published or the personal data in question has previously been published by the controller. The court applied the Marleasing duty of consistent interpretation to read national law in the light of Directive 95/46/EC.

The court was divided on whether the provision, even so interpreted, is compatible with Article 9 of the Directive and Article 22 (right to judicial remedy). The majority considered the purposive interpretation fell within the margin of appreciation afforded to member states and to Parliament and did not breach the Directive, while the minority (Sharp LJ) considered there was a real risk that section 32(4), as drafted, went beyond what was "necessary" under Article 9 and risked infringing the Directive and Article 22 because of the automatic nature of the stay and the limited and discretionary role of the Information Commissioner in lifting it.

Because the compatibility point was not acte clair the court referred a question for a preliminary ruling to the Court of Justice of the European Union on the conformity of sub-sections (4) and (5) of section 32 with the Directive.

Background and parties: The appellant, Mr James Stunt, sued Associated Newspapers Limited (AN) under the Data Protection Act 1998 and in privacy torts arising from articles and the alleged processing of his personal data. AN applied under section 32(4) DPA for a stay of proceedings on the basis that the personal data were being processed only for the special purposes (journalism) with a view to publication of previously unpublished journalistic material. Popplewell J had ordered a stay. Mr Stunt appealed.

Nature of the application/relief sought: The proceedings below and on appeal concerned whether the stay imposed by s.32(4) should apply and whether that statutory stay is compatible with EU law (Directive 95/46/EC) and the Charter; alternatively whether the court should disapply or disregard the national provision by application of Marleasing or Benkharbouche principles. Relief sought by the appellant included removal of the stay and vindication of DPA rights (subject access, cessation of processing, rectification/erasure, and compensation).

Issues framed:

• Proper interpretation of s.32(4) DPA: whether the stay extends indefinitely to proceedings concerning personal data already published where a controller asserts an intention to publish "new" journalistic material in future.
• Compatibility of s.32(4) with Directive 95/46/EC (notably Article 9) and with rights under the Charter, including the right to an effective judicial remedy.
• Where incompatibility exists, whether national courts must disapply or otherwise remedy the incompatibility or make a preliminary reference to the CJEU.

Court’s reasoning: The Court gave s.32(4) a purposive and restricted interpretation: the stay is intended to protect pre-publication investigative journalism and should be confined to personal data held with a view to publication of hitherto unpublished journalistic material by the data controller; it should not produce a permanent or disproportionate bar to DPA claims concerning data already published. That interpretation was adopted as required by the Marleasing duty of consistent interpretation so as to give effect, where possible, to the Directive.

The court was divided on compatibility. The majority (Sir Terence Etherton MR and McFarlane LJ) considered that the purposive reading fell within the margin of appreciation accorded to member states and was reconcilable with the Directive and Article 9, and that the stay is an integral part of the statutory scheme which provides remedial routes (including Commissioner's review and appeals). The minority (Sharp LJ) considered that the automatic nature of the stay, its dependence on the data controller's assertion, the discretionary and limited role of the Information Commissioner, and the practical difficulties for a data subject made it likely that s.32(4) went beyond what was "necessary" under Article 9 and risked infringing Article 22 (judicial remedy).

Disposition: Given the disagreement and because the compatibility issue was not acte clair, the court referred questions on the conformity of sub-sections (4) and (5) of s.32 to the Court of Justice of the European Union for a preliminary ruling. The court thereby allowed the appeal in part by construing s.32(4) purposively and by making a reference to the CJEU on compatibility.

Appeal allowed in part. The Court of Appeal held that section 32(4) DPA must be given a purposive, restricted interpretation so the statutory stay is confined to pre-publication processing of personal data held with a view to publication of hitherto unpublished journalistic material; the court applied Marleasing to interpret national law consistently with Directive 95/46/EC. The court was divided on whether section 32(4), even so interpreted, complies with Article 9/Article 22 of the Directive and therefore made a preliminary reference to the Court of Justice of the European Union on that question.

Appeal from Popplewell J (High Court, Queen's Bench Division) whose order dated 6 April 2017 ([2017] EWHC 695 (QB)) stayed certain DPA claims; permission to appeal granted by Longmore LJ on 13 September 2017; Court of Appeal judgment [2018] EWCA Civ 1780 with a referral for a preliminary ruling to the CJEU.