UK: Malicious Falsehood; Data Protection – Order Under s10 DPA

Last Updated: 27 November 2017
Article by Daniel Jennings

Interim injunction – malicious falsehood – Bonnard v Perryman – data protection – order under s10 DPA.

Al-KO Kober Ltd & Anor v Balvinder Sambhi
Reference: [2017] EWHC 2474 (QB)
Court: High Court (Queen's Bench Division)
Judge: Whipple J
Date of Judgment: 6 Oct 2017

Facts

C1 was the UK based part of the business of Al-Ko VT, a leading brand in the towing and trailer industry. Two particular products, the AKS1300 and the AKS3004, formed part of the Company's stabiliser range for use when towing caravans. C2 was C1's marketing manager. D had developed a product which he referred to as "the Torquebar".

D had made 84 videos which referred to the AKS stabilisers, to C1 and to C2, in various ways which were derogatory, of the stabilisers, of C1 and of C2. The videos were shown on D's Torquebars YouTube channel.

In May 2017, C1 first became aware of D's videos. The viewing figures were low, and C1 took no legal action. On 19 May 2017, C2 telephoned D to ask him to remove the videos from his YouTube channel, suggesting that the videos reflected badly on C1 and contained statements and suggestions which were not true.

D called C2 back on 22 May 2017, and recorded this conversation without asking C2's permission ("the Recording"). C1 instructed Wright Hassall, solicitors, to advise. Following an exchange of correspondence, more videos started to appear on the Torquebars channel.

By August 2017 there were videos appearing which suggested that C2, C1 and/ or its products were a "killer"; meanwhile the videos were getting increased numbers of viewings, with one video (which referred to C1 conducting a "scam") recording thousands of viewings.

Following further correspondence, further videos were posted which were personal in tone, referring to C2 and the Cs' solicitor in terms which were highly offensive, alongside continued criticism of C1 and its products. D was also using extracts from a trade fair video in which C2 was shown speaking about the AKS stabilisers ("the Trade Fair Footage").

The Cs issued an application for (1) an interim injunction in malicious falsehood in favour of C1, and (2) an order in favour of the C2 pursuant to section 10(4) of the Data Protection Act 1988 ("the DPA") requiring D to cease processing C2's personal data.

Issue

  1. Should C1 be granted an interim injunction in malicious falsehood?
  2. Should C2 be granted an order pursuant to section 10(4) DPA?

Held

Granting an interim injunction in favour of C1 and an order pursuant to s10(4) DPA in favour of C2:

  1. The Judge was bound by the rule in Bonnard v Perryman, which applies equally to claims of malicious falsehood. The Judge therefore had to be satisfied that no judge or jury could reasonably conclude that the statements made by the Defendant were true. In doing so, the Judge was not bound simply to accept the Defendant's assertion that they are true and leave the matter to trial: Sunderland Housing Company Ltd and Anor v John Baines and Ors [2006] EWHC 2359 (QB).
    There was no issue as to whether the words referred to C1.

    As to special damage, C1 relied on s3 of the Defamation Act 1952. In this regard, a party must show that the statement of which complaint is made is more likely than not to cause him pecuniary damage. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs. D did not suggest that the effect of his statements would not be to put off some potential customers, and his avowed specific purpose in publishing these statements was to do precisely that.

    As to falsity, the Cs identified meanings which could be attributed to each of the videos which were the subject of the application, which concerned alleged misconduct by the Cs and deficiencies in the AKS stabiliser products. D argued that the Cs had lied in making guarantees about the products, and that each had acknowledged those lies. This lie, D said, was a deceit on C1's customers and justified (as true) the various statements that D had made in his videos. None of the assertions about the product amounted to a guarantee, and the whole of D's case appeared to be built on a false premise. No judge or jury, properly directed, could reasonably conclude that D's various statements could be true. Nor was there any evidence at all to support C1's claim that the products were defective, and C1 had provided the Court with evidence to demonstrate that its products were safe.

    As to malice, there were features of the case which pointed to D having improper motives in publishing the material he did. However, in light of the conclusion that the statements were untrue there was no need to reach any conclusion on this issue. D would understand, from the judgment, that the statements he made in the videos were false. Any future publication of those videos (or any other similar videos which he may make in the future) would undoubtedly be malicious, and would amount to the tort of malicious falsehood.
  2. For the purposes of s10 DPA, C2 had given notice in writing to D to require him at the end of such period as is reasonable in the circumstances to cease processing his personal data. None of the relevant exceptions applied.

    D resisted the data subject notice on the basis that (he said) the data in question was already in the public domain. There is no public domain exception to s10 of the DPA. D's refusal to comply with the data subject notice was therefore not justified.

    C2 had suffered substantial damage and distress as a result of the processing of his personal data by D, in the various uses to which D had put the Recording, the Trade Show Footage, and other images of C2. This was an appropriate case in which to order D to take steps to comply with the notice, and he was required to cease processing any personal data in respect of which C2 was the subject.

Comment

Both orders sought by the Cs were unusual. The effect of the rule in Bonnardis that interim injunctions are rarely granted in libel or malicious falsehood cases. However, where, as here, a defendant advances no coherent case on the truth of the statements in question, then a claimant may be able to overcome the high threshold the rule creates. The Judge then overcame the particular difficulties of making a finding on malice at the interim stage by focusing on D's state of mind were the publications to continue in the future, after it had been held that the statements he made were false.

Given the relatively wide range of exemptions available under the DPA, particularly s32 which applies to journalism, art and literature, it is rare for a defendant to insist on a right to continued processing on the basis of a justification which is not available in the DPA itself. Where he does so, an order to cease processing personal data altogether may be more appropriate than a narrow injunction providing for compliance with a notice under s10 DPA.

Originally reported here: http://www.5rb.com/case/al-ko-kober-ltd-anor-v-sambhi/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions