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In his judgment, Lord Justice Warby found for Meghan in her claim for misuse of private information against Associated Newspapers, publishers of the Mail on Sunday (MoS) and Mail Online, over five articles in February 2019 that included extracts from the letter. A case concerning “the lawfulness” immigration exemption found in paragraph 4 of Schedule 2 of the Data Protection Act 2018. This exemption allows those processing personal data for immigration control purposes to refuse to comply with the data subject rights guaranteed by the GDPR to the extent that complying with those provisions would prejudice those purposes. The Court of Appeal found that this exemption was not compliant with Article 23 of the GDPR.
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Whether the Court of Appeal erred in failing to hold that the claimants were entitled to a remedy in the tort of private nuisance by reason of the Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform. Facts Where a breach is “non-trivial”, a claimant will only be able to claim damages where they can prove that they have suffered “damage” (as defined under the appropriate legislation). Under the GDPR and DPA 2018, persons whose rights under the GDPR are infringed are entitled to compensation where they have suffered “material or non-material damage”, the latter of which “includes distress”. The Tate Modern opened an extension in 2016 called the Blavatnik Building. The Blavatnik building is ten stories high and, on its top floor, has a viewing platform which offers panoramic views of London. The Appellants own flats neighbouring the Tate Modern which are of a similar elevation to the Blavatnik building and whose walls are mainly made of glass. On the southside of the viewing platform, visitors to the Tate can see directly into the flats of the Appellants.In this case the Alberta Court of the Queen’s Bench awarded damages under new “public disclosure of private fact” tort. The case concerned the making public of images of the claimant engaging in sex acts with the defendant- these had been shared during a romantic relationship between 2005 to 2016 where the parties had two children together. The parties had a mutual understanding that the images would not be shared or published anywhere. However, the defendant then proceeded to share the images online, including those involving the sexual assault of the claimant. Following a drunken altercation with a police officer the claimant was dismissed from his role at the National Crime Agency (“NCA”). The claimant then pursued a case for breach of the Data Protection Act (“DPA”). The analysis of the issues in the judgment provides significant insight into the application of the DPA. There was a Panopticon blog post about the case. Bloomberg had argued that the general public understands that reporting the existence of a criminal investigation into an individual does not mean they are necessarily guilty of a criminal offence. However, the supreme court ruled that even revealing the existence of a criminal inquiry would affect aspects of an individual’s private life such as “the right to establish and develop relationships with other people”. Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.” [106]
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He also found that the MoS’s articles “copied a large and important proportion of the work’s original literary content”. Confirmation that representatives are not liable for breaches by the data controller or data processor and remedies should be sought directly.
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However, Le Soir created a free, electronic, searchable version of its archives from 1989 onwards, including the article at issue. G relied on the fact that the article appeared in response to a search on his name on Le Soir’s internal search engine and on Google Search. He explained that its availability was damaging to his reputation, particularly in his work as a doctor. The newspaper refused the application by stated it had asked Google to delist/deindex the article. Warby said there would be a further hearing in March to decide the next steps in the legal action. Meghan’s data protection claim is still outstanding. Also expected to impact the allocation of claims involving “trivial” breaches of data protection legislation, as the court made clear that the High Court was not the appropriate forum for these (see also Warren v DSG Retail Ltd above).
Data, Damages and Duchesses: An overview of 2021 UK privacy
The judge said “the only tenable justification” for publication would be to correct some inaccuracies about the letter contained in an article in People magazine that had featured an interview with friends of Meghan. The court held for the defendant that no such liability existed, as (a) the GDPR would have referred to ‘representative liability’“ more clearly in its operative provisions” had it intended to impose this, (b) Representatives do not have power over controllers or processors “ on a day to day basis over how and why data are processed”, and (c) the European Data Protection Board (“ EDPB”) guidelines state Representatives are “ not responsible for complying with data subject rights”. As such, the remedies sought could only be obtained directly from WorldCo.Limits recoverability of After-The-Event (“ ATE)” insurance premiums which had been common for claimants in low-value data claims typically for breach of confidence and misuse of private information claims to cover their costs and to pressure defendants into settling (and in paying more money to settle) by having to factor in ATE premiums when considering their costs liability. Since it is no longer clear that ATE premiums will be recoverable in such cases, claimants will need to give greater thought to purchasing this (particularly where cases involve data breaches) which may reduce the number of claims in which this tactic is deployed by claimants.
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