MR JUSTICE WARBY
Approved Judgment
81.
NT1 & NT2 v Google LLC
First, there is data protection law itself. DPA s 70(2) contains a “supplementary
definition” which explains that “For the purposes of this Act, data are inaccurate if
they are incorrect or misleading as to any matter of fact.” This does not take the
matter much further, though the reference to fact emphasises that this Principle is not
concerned with matters of comment, opinion or evaluation. The reference to
“misleading” indicates that the Court should not adopt too narrow and literal an
approach. The Working Party’s comments on its criterion 4 are helpful:
“In general, ‘accurate’ means accurate as to a matter of fact.
There is a difference between a search result that clearly relates
to one person’s opinion of another person and one that appears
to contain factual information.
In data protection law the concepts of accuracy, adequacy and
incompleteness are closely related. DPAs will be more likely to
consider that de-listing of a search result is appropriate where
there is inaccuracy as to a matter of fact and where this presents
an inaccurate, inadequate or misleading impression of an
individual. When a data subject objects to a search result on the
grounds that it is inaccurate, the DPAs can deal with such a
request if the complainant provides all the information needed
to establish the data are evidently inaccurate.”
82.
A second source of possible guidance is the domestic law of defamation. Although the
DP Directive must be given an autonomous interpretation, it may be legitimate to
draw on national legal traditions when implementing the broad principles established
by European law. In a libel action, where truth is in issue, the Court will first
determine the single natural and ordinary meaning which the words complained of
would convey to the ordinary reasonable reader. It is that which the defendant must
then prove to be true. A claim for libel cannot be founded on a headline or other
matter, read in isolation from the related text; the Court must identify the single
meaning of a publication by reference to the response of the ordinary reader to the
entire publication: Charleston v News Group Newspapers Ltd [1995] 2 AC 65. Mr
Tomlinson initially submitted that the position is or should be different in the present
context. Unlike the position in a libel case, he argued, the court looks not at the
“natural and ordinary meaning” of the article read as a whole, but at each discrete
“item of information” which it contains. Mr White contends that any factual statement
contained in the Articles or the Book Extract must be read in its proper context, and
that any complaint of inaccuracy must be assessed in the light of the ordinary and
natural meaning of the Article or Book Extract of which the offending statement is
part.
83.
By the end of the trial, Mr Tomlinson had moved in this direction, accepting that
words must be read and interpreted in context, but he still resisted the introduction of
the defamation principles as to meaning, suggesting that they contained “artificial”
restrictions. As I have indicated, I prefer Mr White’s submissions. I do not regard the
principles identified in Charleston as artificial. Nor do I think them inapposite in the
present context. They have been developed over centuries to meet the needs of a
cause of action that addresses issues arising from the publication of words and their
impact on reputation. Mr White’s submissions also have two other virtues. They find
support in domestic authority. In Lord Ashcroft v Attorney-General [2002] EWHC