MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
1122 (QB) [22] Gray J held it arguable that ostensibly innocent words might convey a
secondary, inferential meaning which embodied sensitive personal data about an
individual to the effect that he was involved in money laundering (see Tugendhat &
Christie, op cit at 7.25). In Quinton v Peirce [2009] EWHC 912 (QB) [2009] FSR 17
[27]-[29], [92] Eady J applied the single meaning rule when assessing whether data
were inaccurate within the meaning of the Fourth Principle. In addition, the
defamation rules seem well-adapted to testing whether the words satisfy the Working
Party criterion of giving “an inaccurate, inadequate or misleading impression of an
individual”.
84.
There is a further dimension to this. The law of defamation contains a rule (the
“repetition rule”) which recognises that an accurate report of what a third party has
said about a person may convey an inferential defamatory meaning which is false.
The ordinary meaning of the statement, “The prosecutor alleged that the defendant
had defrauded the Revenue” is that the claimant is guilty of fraud. That could turn out
to be untrue. The same is true of the statement that “The Jury found him guilty of
fraud”. The policy of defamation law is to hold the publisher responsible for the
inferential meaning, whilst protecting those who report accurately on court
proceedings, and on certain other kinds of proceeding or statement such as
Parliamentary proceedings, even if the report conveys a false or inaccurate inferential
meaning. The protection is absolute or qualified, according to the context. Some
accurate reports are privileged “subject to explanation or contradiction”.
The
interpretative provisions of DPA Schedule 1 Part II contain some apparently relevant
provisions for qualified exemption from the strict requirements of accuracy. They
state:
“7.
The fourth principle is not to be regarded as being
contravened by reason of any inaccuracy in personal data
which accurately record information obtained by the data
controller from the data subject or a third party in a case where
(a) having regard to the purpose or purposes for which the
data were obtained and further processed, the data controller
has taken reasonable steps to ensure the accuracy of the data,
and
(b) if the data subject has notified the data controller of the
data subject’s view that the data are inaccurate, the data
indicate that fact.”
85.
It is noteworthy that the remedial provisions of the DP Directive and DPA afford the
Court a discretion, and considerable latitude. DPA s 10(4) gives the Court a discretion
to require a data controller to take “such steps… as the court thinks fit”. Section 14
provides that if the Court is satisfied that personal data are inaccurate it “may” order
the data controller to rectify, block, erase or destroy those data. Sections 14(2) and (3)
contain further provisions, some of which build on the requirements of Sch 1 Part II
paragraph 7, quoted above:
“(2) Subsection (1) applies whether or not the data accurately
record information received or obtained by the data controller
from the data subject or a third party but where the data
accurately record such information, then-