Dale Vince v Associated Newspapers Limited

The claimant brought a claim under the United Kingdom General Data Protection Regulation (UKGDPR), principally alleging that the juxtaposition of a headline referring to a "sex pest/sex harassment donor" with photographs and a caption identifying him constituted unfair processing of his personal data contrary to article 5 of the UKGDPR. The defendant applied to strike out the claim as an abuse of process and alternatively sought summary judgment; the claimant cross-applied for summary judgment.

The court concluded that the UKGDPR claim was an abuse of process because it could and should have been brought in the earlier defamation proceedings given the common facts, the pre-action correspondence and the absence of any satisfactory explanation for pursuing the claims consecutively. Applying established authorities on abuse of process and strike out (including Johnson v Gore Wood and related authorities), the claim was struck out.

Further, applying principles derived from defamation case law (notably the rule in Charleston) to the assessment of whether processing by publication was fair, the court held fairness should be assessed by reference to the entirety of the publication. On that basis there was no real prospect of success: any ordinary reader reading the whole article would quickly understand the claimant was not accused of sexual harassment, so the processing was not unfair.

Background and parties:

• The claimant, Dale Vince, complained about an article published in Mail+ on 8 June 2023 and in the print Daily Mail on 9 June 2023. The article included a headline about Labour repaying a donation to a "sex pest/sex harassment donor" and, as published in Mail+ and in the Daily Mail, photographs of Mr Vince with a caption identifying him at Just Stop Oil protests. The claimant alleged that the juxtaposition gave a misleading impression that he was the donor accused of sexual harassment.
• The claim in these proceedings was brought solely under the UKGDPR (principally article 5) seeking damages for non-material and material harm. Associated Newspapers accepted that the decision to juxtapose the headline and photographs comprised processing of Mr Vince’s personal data.

Procedural posture and relief sought:

• The defendant applied to strike out the UKGDPR claim as an abuse of process under CPR 3.4(2)(b) and, alternatively, for summary judgment. The strike out application relied on the fact the claimant had already issued defamation proceedings relating to the same publication which had been the subject of earlier litigation and pre-action correspondence that expressly raised UKGDPR issues. The claimant cross-applied for summary judgment.

Issues framed by the court:

1. Whether the UKGDPR claim was an abuse of process because it could and should have been raised in the prior defamation proceedings.
2. Whether the processing of the claimant’s personal data was unfair within the meaning of article 5(1)(a) of the UKGDPR, and if so whether that could be decided as a matter of law on summary judgment.

Court’s reasoning:

• On abuse of process: the court applied the modern authorities on the court’s power to strike out as an abuse (including Johnson v Gore Wood and subsequent authorities). Although the strict Henderson v Henderson rule did not directly bite because the earlier strike-out application had not been finally determined when the UKGDPR claim was issued, the court undertook a broad merits-based assessment. The court found there was no satisfactory reason why the GDPR claim was not pursued together with the defamation claim given the identical factual matrix, the pre-action correspondence which expressly flagged a data-protection claim, and the decision to hold the GDPR claim in reserve after hearing on the defamation strike-out application. The course adopted was oppressive and an improper use of the court’s process, so the claim was struck out.
• On summary judgment: applying principles from defamation law, in particular the rule in Charleston that a headline and photographs must be read with the accompanying text, the court held that fairness of processing by publication in this factual context should be assessed by reference to the entire publication. As it was common ground that an ordinary reader reading the whole article would quickly understand the claimant was not the person being accused, there was no real prospect of establishing unfair processing. The judge stated that, had he not struck the claim out as an abuse of process, he would have granted summary judgment for the defendant.

Subsidiary findings and implications:

• The court observed that fairness under article 5 is context-dependent and requires an objective balance of interests, and that established public-interest considerations relevant to publication warrant considering the whole of what was published when assessing fairness where publication is the form of processing complained of.

The claim is dismissed. The UKGDPR claim was struck out as an abuse of process because it could and should have been brought with the antecedent defamation proceedings and pursuing it separately was an oppressive use of the court’s process. Alternatively, applying the rule in Charleston and assessing fairness by reference to the entire publication, there was no real prospect that the claimant could show the processing was unfair and summary judgment would have been granted for the defendant.