Joseph Pacini & Anor v Dow Jones & Company Incorporated

A claimant may pursue any technically viable cause of action arising from the facts, even where another possible claim is statute-barred or would face stronger defences. A data-protection claim is not abusive merely because it contains a substantial reputational element or resembles a defamation claim. The court must examine the claimant’s objective and decide whether the claim is plainly improper; fact-sensitive abuse issues ordinarily require a trial.

Damages for reputational harm in data-protection proceedings raise difficult and unsettled questions. Those questions should not ordinarily be resolved summarily. A claim may also be struck out on Jameel grounds, but only where the benefit sought is insignificant or the litigation is disproportionate. Removal or correction of online material may have real value even where publication is limited.

Joseph Pacini and Carsten Geyer, former senior executives of XIO Group, brought data-protection proceedings against Dow Jones concerning two Wall Street Journal articles published in 2017 and 2018. They alleged that the articles contained inaccurate personal data, including allegations of fraud, concealment and misleading conduct, and sought compensation, declarations and erasure or correction under the UK GDPR and the Data Protection Act 2018.

Dow Jones applied under CPR 3.4(2)(b) to strike out the claim as an abuse of process. It argued that the claim was in substance a statute-barred defamation claim dressed up as data protection, and alternatively that it was abusive because the publication and likely benefit were insufficient to justify the costs. The central issues were whether the claim was plainly improper, whether reputational damages could be recovered in data protection, and whether the claim was Jameel-abusive.

1. Strike-out application dismissed. The claim was arguable and not plainly improper. The exceptional jurisdiction to strike out for abuse should be exercised only in a clear and obvious case.
2. A claimant is generally entitled to choose among causes of action arising from the same facts. The fact that a defamation claim would be time-barred, or would face serious-harm, jurisdictional or substantive defences, did not make the data-protection claim abusive. The court adopted the approach in NT1 v Google of examining the claimant’s objective. On the evidence, the claimants sought correction or removal of allegedly inaccurate personal data following changed circumstances, including the withdrawal of foreign proceedings. Their reputational concerns did not establish that the claim was merely a disguised defamation action.
3. The issue was fact-sensitive. The claimants’ delay and earlier defamation correspondence might be relevant at trial, but could not justify summary judgment. The claim could proceed notwithstanding its reputational element and its reliance on Article 17 UK GDPR and section 167 of the Data Protection Act 2018.
4. The recoverability of damages for reputational harm in non-defamation claims was unsettled. Authorities concerning misuse of private information showed differing approaches, and the Supreme Court had expressed reservations about importing defamation principles into privacy damages. It was therefore wrong to treat the claim as abusive merely because it sought compensation for reputational harm.
5. The alternative Jameel ground also failed. Publication was not de minimis, the claimants asserted a real benefit from a reasoned judgment and possible correction or erasure, and the costs could be controlled through case management. The value of vindicating legal rights was not reducible to a mechanical comparison between damages and costs.
6. The court ordered a trial of preliminary issues concerning the meaning of the personal data, whether the meaning was defamatory, and whether any data constituted criminal-offence data under Article 10 GDPR. The defendant’s application to strike out was dismissed.

Not an appeal. The judgment determined an application in the High Court and directed a trial of preliminary issues.