ABC v Tony Palmer

The court found that the defendant, a freelance court reporter, attended a public magistrates' hearing on 12 May 2015, took contemporaneous Teeline shorthand notes and photographs, and published a factual report of that hearing on his blog. The report reproduced material said in open court, including mitigation remarks by the claimant's counsel about the claimant's mental health, and accurate details of convictions for fraud contrary to sections 1 and 2 of the Fraud Act 2006. The judge held that the material was not private, that the claimant had no reasonable expectation of privacy in respect of what was said in open court, and that Article 10 rights to freedom of expression and reporting of public hearings outweighed the claimant's Article 8 interests.

The judge dismissed claims in misuse of private information, harassment under the Protection from Harassment Act 1997, and breaches of the Data Protection Act 1998, GDPR and the Data Protection Act 2018. The only right-based issue considered separately was the Article 17 GDPR "right to be forgotten" claim made after the claimant's convictions became spent: after balancing the factors identified in NT1 Google LLC [2019] QB 344, the judge concluded that the defendant's retention of his underlying records and limited reposting between June 2020 and May 2021 were justified by legitimate grounds and freedom of expression, so no remedial erasure obligation arose.

Background and parties. The claimant (anonymised as ABC: "Ms C") pleaded guilty at a magistrates' court on 12 May 2015 to nine counts of fraud contrary to sections 1 and 2 of the Fraud Act 2006. The defendant, a freelance journalist and court reporter ("Mr Palmer"), published a blog post on 13 May 2015 reporting the hearing and reproducing material said in open court, together with photographs he had taken outside court.

Nature of the claim and procedural posture. Ms C issued proceedings asserting misuse of private information, harassment (Protection from Harassment Act 1997 ss.1 and 3), breaches of the Data Protection Act 1998, GDPR and the Data Protection Act 2018 (including an Article 17 erasure request), and a right to be forgotten following her convictions becoming spent under the Rehabilitation of Offenders Act 1974. Proceedings were heard in the High Court (Media and Communications List); both parties gave evidence and were cross-examined.

Issues framed by the court. The principal issues were: (i) whether Mr Palmer had attended and reported the hearing (source of his material); (ii) whether the material published was private or attractied a reasonable expectation of privacy; (iii) whether publication amounted to harassment (a course of conduct) under the 1997 Act; (iv) whether processing and retention of data breached data protection legislation; and (v) whether, after convictions became spent, the claimant was entitled to erasure under Article 17 GDPR.

Court's findings of fact and reasoning. The judge preferred the defendant's evidence and contemporaneous records (cause list, Teeline shorthand notes, dated photographs and email exchanges). He found the defendant had attended the hearing, taken notes and photographs, and that the blog post was an accurate account of what was said in open court, including mitigation about the claimant's OCD said by her counsel. The Royal Borough press release relied on by the claimant was not the defendant's source; the defendant's notes were.

The judge concluded the information was not private because it had been disclosed in open court and therefore the claimant had no reasonable expectation of privacy in it. Article 10 public interest and freedom of expression considerations outweighed Article 8. There was no "course of conduct" amounting to harassment: a single factual report largely unread by third parties did not meet the statutory test. On data protection claims the judge found the processing was lawful, fair and necessary for reporting and for the defendant's legitimate interests in defending potential claims; much of the material had been manifestly made public by the data subject herself. On Article 17 (right to erasure) the judge applied the balancing exercise in NT1 Google LLC [2019] QB 344 and found that the defendant's retention of underlying records and the limited period of republication after June 2020 were justified by freedom of expression, the need to defend against false allegations, and the public interest in accurate reporting of a public hearing. The judge concluded all of the claimant's claims failed.

The claim is dismissed. The judge found that (i) the defendant attended the public magistrates' hearing, recorded it contemporaneously and took the photographs used; (ii) the material published reported what was said in open court and was not private, so Article 8 was outweighed by Article 10; (iii) publication did not amount to harassment as there was no course of conduct; (iv) data protection and related statutory claims were not made out because the processing was lawful, related to material manifestly made public by the claimant, and was justified by legitimate grounds and the defendant's need to defend himself; and (v) the Article 17 GDPR erasure request did not require deletion of underlying records or prevent limited republication in the period June 2020–May 2021 given the balancing exercise applicable to spent convictions.