Reference:  EWHC 912 (QB);  FSR 17
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 30 Apr 2009
Summary: Malicious falsehood - Data Protection Act - Election leaflet - Meaning - Malice - Falsity - s.3 Defamation Act 1952 - Remedies - Rectification - Accuracy - Causation
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Instructing Solicitors: Manches LLP for the C; Goodman Derrick for the Ds
The C was an incumbent district councillor. D1 stood against him for election. D2 was his election agent. Together they published “Focus . . . Election Special” to local voters. The C sued for malicious falsehood and breach of the Data Protection Act 1998 in regard to three allegations made in the leaflet.
(1) What meaning should be attributed to the words;
(2) Whether the words were false;
(3) Whether the Ds had published them maliciously;
(4) Whether the publications were actionable per se further to s.3(1) of the Defamation Act 1952;
(5) Whether the Data Protection Act was applicable; and
(6) Whether the publications complained of caused the C to lose the ensuing election.
Finding for the Ds:
(1) The words did not bear the meanings contended for by the C.
(2) They were not false in the meanings found by the court.
(3) The Ds had not acted maliciously.
(4) The words were actionable per se as they were likely to have caused the C to lose income linked to the office of district councillor.
(5) It was neither necessary nor proportionate to interpret the scope of the Data Protection Act so as to provide a parallel set of remedies for the publication of information which was neither defamatory nor malicious. The judge was particularly perturbed by the remedy of rectification sought under the Act which, if awarded, would have meant that the Defendants would have had to have published a retraction to the original publishees. The judge held that, in any event, this remedy could only be granted where the facts said to be inaccurate only had one possible interpretation.
(6) The publication complained of did not cause the C to lose the election.
This judgment would appear to be a slap in the face for the proposition that the Data Protection Act applies to publications which could previously have been subject to actions for malicious falsehood or defamation only. In particular, it indicates that courts will be most unwilling to grant the rectification remedy available under the Act because it flies in the face of the established principle that the courts will not force a defendant to make a public apology or retraction. As the judgment points out, this principle was in effect reaffirmed by the Defamation Act 1996.