ABC v Tony Palmer

An accurate report of matters said in open court will generally not involve misuse of private information where the information has entered the public domain and there is no reasonable expectation of privacy. Article 8 rights may be outweighed by Article 10 rights where publication serves the public interest in reporting criminal proceedings. A single publication, not targeted at the claimant and not calculated to cause alarm or distress, does not ordinarily constitute harassment. In an erasure claim under Article 17 of the GDPR, the court must balance the data subject’s rights against freedom of expression, information, legitimate interests and the need to retain records for legal defence. Spent convictions are relevant but do not automatically require deletion. The balance may favour retention and temporary republication where the material is accurate and necessary to vindicate reporting against unfounded allegations.

The claimant, anonymised as ABC, pleaded guilty to nine counts of fraud by false representation in a magistrates’ court in 2015. The defendant, a freelance journalist, attended the hearing, took notes and published an account on his blog. The report included matters said in open court, including mitigation concerning the claimant’s mental health and personal circumstances.

The claimant alleged misuse of private information, harassment, breaches of data-protection legislation and the GDPR, and relied on the right to be forgotten after her convictions became spent. The defendant denied liability, relying on the accuracy and public-interest nature of the report, freedom of expression and the need to retain records for his defence. The central issues were whether publication and later republication were unlawful and whether the claimant was entitled to erasure.

1. Misuse of private information. The information in the blog post had been aired in open court by the claimant’s own legal representative in mitigation of guilty pleas. It was published shortly afterwards and was not private information in which the claimant could reasonably expect privacy. Article 8 rights were outweighed on these facts by the defendant’s Article 10 rights.
2. Harassment. Applying Hayes v Willoughby [2013] 1 WLR 935, harassment requires a persistent and deliberate course of unreasonable conduct targeted at another person and calculated to cause alarm, fear or distress. The blog post was not targeted at the claimant, was not calculated to cause such consequences, and was an accurate report of a public hearing. The limited republication did not create an actionable course of conduct. It was also reasonable in all the circumstances for the purposes of section 1 of the Protection from Harassment Act 1997.
3. Data protection. The defendant’s processing was accurate, fair and reasonable. It served legitimate journalistic and public-interest purposes and engaged freedom of expression. The claimant’s information had been manifestly made public by her own conduct, within Schedule 1, Part 3, paragraph 32 of the Data Protection Act 2018. No breach of the relevant data-protection provisions was established.
4. Article 17. Following the balancing exercise discussed in NT1 Google LLC [2019] QB 344, the fact that the convictions had become spent was relevant but did not compel deletion. The defendant had overriding legitimate grounds to retain his notes and records for legal defence and to demonstrate the accuracy of his report. His temporary republication between June 2020 and May 2021 was protected by freedom of expression and information. The claim was dismissed and there was judgment for the defendant.