Stunt v Associated Newspapers

C, a well-known businessman, brought claims concerning 27 articles published between March 2014 and November 2015 by D, the publisher of the Daily Mail, Mail on Sunday and MailOnline.

The claims were brought in misuse of private information, harassment and breach of the Data Protection Act 1998 (‘the DPA’).

D issued an application for a stay of proceedings under s. 32(4) of the DPA.

C resisted the stay on the grounds that s.32(4) was incompatible with the Data Protection Directive 95/46/EC (‘the Directive’) and/or that it was incompatible with C’s rights provided by the EU Charter of Fundamental Rights, and so therefore the court should disregard s.32(4).

1. The compatibility of s.32(4) with Articles 9, 22, and 23 of the Directive;
2. The compatibility of s.32(4) with the Charter of Fundamental Rights of the European Union;
3. Dependent on the answers to (1) and (2), whether the court should dis-apply s.34(2).

1. It is for Member States to determine the extent to which it is necessary under Article 9 to make provision for the protection of journalism in the context of pre-publication restraint. The balance struck by S.32(4) has a particular purpose in protecting the adverse effect on journalism of the threat of prior restraint on publication by injunction, and was intended by parliament to do so.
2. S.32(4) was not inconsistent or incompatible with Article 9 of the Directive, but was a legitimate balancing of substantive privacy rights under the Directive with rights of freedom of expression under Article 10 of the ECHR, and so accords with Article 9 of the directive, within the margin of appreciation legitimately permitted to a Member State. This is particularly so as s.32(4) applies only to claims for remedies under the Act, not to other remedies which protect privacy rights.
3. Neither was it inconsistent or incompatible with Articles 22 or 23 of the Directive, which are concerned only with the efficacy of remedies in national law. As s.32(4) correctly strikes the balance required by Article 9 of the Directive, it does not fail to give effect to the rights conferred by the Directive.
4. Nor was s.32(4) inconsistent with C’s rights under the Charter: the rights to protection of data provided by Article 8 of the Charter are based on the rights provided under the Directive, and as there is no incompatibility with the Directive, there is none with the Charter.
5. Given the above findings, there was no need to determine whether it would be possible to disregard s.32(4) by applying either the Marleasing principle or the Benkharbouche principle.

As data protection claims in media proceedings become more widespread, there is likely be more litigation about the scope and ambit of s.32. C has been granted permission to appeal, so this is unlikely to be the final word on the legality of the s.32(4) ‘stay’ mechanism.

• Judgment on Bailii