The Daily Mail, Dorries and Data Protection

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Our last two posts addressed the position of Nadine Dorries MP under the Data Protection Act 1998 (the “DPA”) in respect of sensitive personal data concerning her partner’s wife posted on the MP’s website in her Personal Statement to the Press (here and here).

It appears that the Personal Statement to the Press may have been made in anticipation of a story being published in the Daily Mail the following day on the MP’s new relationship. In that story the same sensitive personal data was published, raising the question of whether the Daily Mail was itself potentially in breach of the DPA.

There is one material difference between the two cases. The Daily Mail, being a news organisation, can rely on the exemption at section 32 of the DPA. This applies where the processing of personal data, including the publication of it, is done for the special purposes of journalism, literature or art.  It is not a complete exemption from the provisions of the DPA, but it does permit a journalism organisation which “reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest” to breach a data protection principle (section 32(1)(b)) to breach a data protection principle where it “reasonably believes that, in all circumstances, compliance [with the data protection principle] is incompatible [for the purposes of journalism]” (section 32(1)(c)).

Publication, it is clear, includes making the journalistic material available to the public or any section of the public by any media (from section 32(6)).

A subject of any journalistic material retains their right to bring an action for compensation, including damages for distress (section 13(2)(b)), which means that any newspaper wishing to publish must weigh up the risk of being sued under the DPA and a court finding that newspaper could not have had a reasonable belief that the publication was in the public interest.  There are extremely few cases on this point, but perhaps the most notable is the Naomi Campbell case.  She brought a case against the Mirror as a result of pictures being published of her leaving a Narcotics Anonymous meeting.  The data protection aspect of the case was thoroughly described by the Master of the Rolls, Lord Phillips, when the case was appealed to the Court of Appeal (Naomi Campbell v Mirror Group Newspapers [2002] EWCA Civ 1373, subsequently appealed to the House of Lords [2004] UKHL 22).  At the Court of Appeal it was determined that the publication was in the public interest so that the section 32 exemption applied.  In the House of Lords the case was determined upon the basis of the balance of rights under the Human Rights Act 1998 rather than expressly dealing with the DPA, but this can be implied from section 32(1)(b) as being the balance between the right to freedom of expression and the right to privacy.

So in deciding whether the Daily Mail has breached the DPA, you have to consider, as a court would, whether there were grounds for a reasonable belief that publication of information on her partner’s wife was in the public interest.

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