The use of data protection claims in defamation cases

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An interesting development that is now being seen more and more is the use of the Data Protection Act 1998 (DPA) in defamation cases. The recent decision in Desmond v Foreman and Others [2012] EWHC 1900 (QB) is a useful example.

The claimant was a cover teacher who brought a claim in defamation against the headmaster of the school in which taught, two local authorities and two officials at the local authorities.

The allegations of defamation were based on various communications made by the defendants as a result of safeguarding concerns in relation to an investigation by the school into an allegation made against the claimant of inappropriate sexual conduct by a 19 year old pupil at the school.

During the course of the investigation it came to light that in 2001, prior to his employment at the school in question, the claimant had been arrested, but not charged, with attempted rape although he was subsequently exonerated. It also came to light that other complaints had been made about him.

The claimant's main claim was in defamation – it was implied in communications by the defendants that he had been guilty of the alleged offence when his name was cleared - but he also included claims for breach of the DPA and breach of the Human Rights Act 1998 (HRA).

The defendants denied the claim on number of grounds. They alleged that some of the claims were statute barred and also that the publications were protected by qualified privilege at common law. In short, they had a duty to report their safeguarding concerns.

Various applications and cross applications were made including an application for summary judgment by the defendants. However, this was dismissed as the judge found that the claimant had a real prospect of succeeding in his argument that the words companied of were an unjustifiable interference with his rights under Article 8 of the HRA and that there was a breach of the DPA .

He also found that the claimant had a real prospect of defeating the qualified privilege defence in respect of some but not all of the defamatory publications. He also questioned whether the defamation and HRA claims would add anything to the claimant's claim and invited the parties to consider hearing the DPA claim first.

This case is an example of the DPA being increasingly used in conjunction with defamation claims. Expressions of opinion about an individual of course constitute personal data and inappropriate communication of information about an individual can be a breach of the DPA as well as defamatory.

However, whilst a claim under the DPA is relatively straightforward, awards for damages are usually small. As such, it will not be cost effective to bring a claim for breach of the DPA alone and a compliant to the ICO will not result in an award of damages. In contrast, claims for defamation are far from straightforward but damages are much higher.

Therefore, including a claim for breach of the DPA within a defamation claim, often adds a safety net for claimants and as such, the DPA has over the last few years often been used to bolster defamation cases. However, what is interesting about this decision is that the DPA claim, far from being treated as an afterthought to bolster the underlying defamation claim, was as the judge made clear, the real issue at the heart of the case.