MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
perhaps best expressed by Buxton LJ in McKennitt. That was a claim for breach of
confidence which the defence characterised as an abuse because the Court had held
the information in question to be false. At [79], Buxton LJ said this (emphasis added):
“79 If it could be shown that a claim in breach of confidence
was brought where the nub of the case was a complaint of the
falsity of the allegations, and that that was done in order to
avoid the rules of the tort of defamation, then objections could
be raised in terms of abuse of process. That might be so at the
interlocutory stage in an attempt to avoid the rule in Bonnard v
Perryman [1891] 2 Ch 269: a matter, it will be recalled, that
exercised this court in Woodward v Hutchins [1977] 1WLR
760.
80 That however is not this case. …”.
63.
In the present case, I accept that the protection of reputation is a significant and
substantial element of NT1’s claim and of his motivation. That is an inevitable
conclusion, given his pleaded case and his own evidence as to the damage which
concerns him. Paragraph 12.1 of NT1’s Final Amended Particulars of Claim asserts
that he “ has been and continues to be treated as a pariah in his personal, business and
social life”, and complains that he lives in fear that anyone he meets will find the
URLs via Google “and subsequently and as a result shun him.” NT1’s witness
statement reaffirms these points, talking of his being a “pariah” who is and has been
“shunned”. This is undoubtedly the classic language of reputational harm. That said, it
would be wrong to draw too sharp a distinction between the protection of reputation
on the one hand and private life on the other. The authorities show that injury to
reputation can engage the protection of Article 8 of the Convention: see, for instance,
McKennitt [80], Gulati v MGN Ltd [2015] EWHC 1482 (Ch) [168] (Mann J) (appeal
dismissed, [2015] EWCA Civ 1291), and Khuja ([61] above).
64.
Nor do I consider that the protection of reputation is the claimant’s only objective or,
to use the words of Buxton LJ “the nub” of the claims. The pleading and the evidence
in support of his case rely on factors which go beyond mere reputation, and cross over
into areas of private life which are distinct from matters of reputation. I do not find
that NT1 is seeking to exploit data protection law or the tort of misuse of private
information to “avoid the rules” – to get round the obstacles that defamation law
would place in his way. He is relying on the new law pronounced by the CJEU. As
Mr Tomlinson submits, the Court should not be too liberal in its labelling of prejudice
as “injury to reputation”, lest it undermine the Google Spain regime.
65.
Further, in my judgment it is possible and legitimate to take account in other ways of
the fact and extent of the reputational concerns that feature so prominently in NT1’s
case. As will become clear, I believe they can properly be brought into account when
assessing the Inaccuracy Issues, the Google Spain Issue, and the Misuse Issues. All
of this applies equally to the impact of s 8 of the 1974 Act, and the policy that
underpins that provision: those are factors to which I can have regard, as appropriate,
when determining the issues of liability.