Can A Data Protection Claim Be Pursued After A Defamation Claim About The Same Matters Failed?

In respect of comments made about an individual or company that are or could be defamatory, there is more than one way to pursue that claim:

1. It is possible to argue defamation/malicious falsehood; or

2. It is possible to argue a breach of the data protection legislation on the basis that the data processed by way of publication is inaccurate.

Where each of these arguments relates to the same underlying facts (i.e., it is the same conduct complained of in respect of each of the legal principles), it would be usual for all of the legal arguments to be pursued in the same proceedings. What, however, would happen where a Claimant chose to pursue their claim in defamation only and then, after the determinative hearing/trial in that claim but prior to judgment being handed down, the Claimant chose to pursue a second action in respect of infringement of their data protection rights? This is precisely what happened in this case.

A wealthy businessman was included in an article by the Defendant about his contributions towards the Labour Party and his involvement in a Just Stop Oil protest. The businessman’s concern, however, is that his picture appeared next to a headline relating to the sexual harassment by another Labour donor, who was entirely unrelated to him. The businessman pursued a defamation claim against the Defendant. The judge in that case struck out the defamation claim on the basis that it demonstrated no reasonable grounds of succeeding. For more details on that decision/the defamation claim, please see our previous blog.

After the hearing of the strike out application but before the Judge had handed down judgment, the businessman commenced proceedings relating to the same article but this time alleging a breach of his data protection rights. The Defendant applied for Summary Judgment and Strike out of the Claimant’s claim, and the Claimant cross-applied seeking the same outcomes.

The Court’s view: Abuse of process

The Judge ruled that the businessman’s claim was an abuse of Court process because it should have been raised in his earlier defamation case. All of the facts supporting the data protection claim were known in 2023. The businessman and his lawyers had mentioned the data protection claim in pre-action letters but decided to hold it in reserve —essentially keeping it as a backup if defamation failed. The Court was not satisfied that a good reason for holding such a claim back had been provided.

The Court found this strategy improper. As the Judge put it, the legal process is not meant to allow parties to drip-feed litigation to wear down their opponents.

Was the data processing “unfair”?

Even if the claim had not been struck out procedurally, it still would have failed. Swift endorsed an approach similar to defamation law’s Charleston principle—you must read an entire article, not just the headline or photos, to understand its meaning.

Since the full article clarified that the businessman was not the accused donor, the Court found the data processing was not unfair. In fact, it was fair in the context of journalistic reporting.

Key takeaways

Comment

This case reinforces that data protection law is not a shortcut to reputational redress and that Courts expect litigants to be efficient and transparent in using legal procedures. It also confirms the growing trend of Courts blending data protection, defamation, and free speech principles in media cases.

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