The Court of Appeal has handed down an important judgment appearing to endorse for the first time an alternative route for claimants to seek redress against newspapers and circumvent the principle in Charleston, finding that even if a claim stood no chance of success under the law of defamation, a claim for unfair processing under data protection law may prove successful.

The case concerned the publication by Associated Newspapers Ltd (Associated) of an article in June 2023 about the Labour Party returning a £100,000 donation by a City financier, Davide Serra, who had been accused of sexual harassment.

Also included in the article was reference to a further apparent cause of embarrassment for the Labour Party as another of its donors, Dale Vince, had joined a Just Stop Oil protest.

The article was originally published with the headline “Labour repays £100,000 to ‘sex harassment’ donor”. However, rather than publishing a photo of Mr Serra, immediately below the headline and before the article began were two photos of Mr Vince.

Mr Vince issued proceedings for defamation. Whilst he accepted that the ordinary reader, upon reading the article itself, would very quickly realise that he was not the person to whom the headline referred, Mr Vince argued an innuendo case. In essence, he argued that a substantial number of readers – knowing what they do about headlines and photographs accurately summarising an article – would have seen the headline, the two photographs, and the caption, and understood that the Daily Mail was saying that it was Mr Vince who was guilty, or had been accused, of sexual harassment.

At the High Court, HHJ Lewis relied on the well-established principle in Charleston v. News Group Newspapers Ltd [1995] 2 AC 65 (Charleston) which dictates that a reasonable reader must be taken to have read the headline, photos, and caption together with the body of the article. He held that any such reader would have concluded, as Mr Vince conceded, that the allegation about sexual harassment was not levelled at Mr Vince. Furthermore, the Judge held that there was “no principled basis” for the principle in Charleston not to apply in innuendo cases.

Accordingly, the case was struck out.

A month before HHJ Lewis handed down his judgment, Mr Vince brought a claim under the UK GDPR in relation to the same article alleging that his personal data had not been processed fairly as it was “unexpected and unduly detrimental and without justification”.

In response, as well as applying for summary judgment, Associated Newspapers applied for the UK GDPR claim to be struck out as an abuse of process on the basis that it could and should have been brought in the same proceedings as the defamation claim.

We discussed the judgment of Mr Justice Swift previously here. He found that that the rule in Henderson v Henderson (that it is an abuse of process to litigate an issue that has already been litigated, or which could and should have been raised in earlier proceedings) did not apply since at the time that Mr Vince issued his UK GDPR claim, judgment had not yet been handed down in the defamation claim. As he explained, whilst the Henderson rule may have some flexibility, a “founding requirement for its application” is that there needs to have been a previous determination by a court”.

However, he turned to the court’s power to strike out a case under CPR 3.4(2)(b) and concluded that the claim should be struck out as an abuse of process, holding that “there was every reason why the UK GDPR and defamation claims should have been brought in the same proceedings. Both claims arose out of the same event – the publication of the article in Mail+ and the Daily Mail. Both claims rely on the same factual circumstances, namely the juxtaposition of the headline, photographs and caption, and the contention that the combination of the headline and the photograph created the misleading impression that Mr Vince had been accused of sexual harassment. In one claim this was said to be defamatory, in the other the misleading impression created was said to comprise unfair processing of personal data. Neither claim was legally complex, pleading the claims together would not have given rise to any form of difficulty”.

Importantly, Mr Justice Swift also held that, irrespective of his decision to strike out the claim as an abuse of process, he would have granted Associated’s application for summary judgment. Addressing Mr Vince’s complaint that his data was processed unfairly, the judge noted the various instances of cross-application of defamation law principles to claims under the UK GDPR and ruled that “in this context I consider it is correct to determine whether personal data was processed fairly taking an approach that, like the rule in Charleston, takes account of the entirety of the publication”.

Therefore, importing and relying on the principle in Charleston, and finding (as in the defamation claim) that any reasonable reader of the entire article would “very quickly realise that Mr Vince was not being accused of sexual harassment”, Associated was granted summary judgment.

Mr Vince appealed both aspects of Mr Justice Swift’s judgment, arguing that bringing the data protection claim was not an abuse of process, and that the judge was wrong to, as the Court puts it, “import the ‘wholly alien and inapplicable common law’ Charleston principles for the purpose of assessing the autonomous concept of fairness of data processing under the UK GDPR”.

On the first point, the Court upheld Mr Vince’s appeal, holding that “whilst Associated Newspapers is right to say that the Henderson principles were theoretically applicable, it would not be just to strike out a claim which was intimated from the outset and which was advanced as a back-up in case the defamation claim failed”. As the Court explained, it was important to adopt a “broad, merits- based judgment and taking account of the public and private interests involved and all the facts of the case, and focusing on whether, in all the circumstances, Mr Vince was misusing or abusing the process of the court”. For various reasons, including the fact that Mr Vince “did not delay in intimating his intention to pursue the fair processing claim if the libel claim was lost”, the Court concluded that his behaviour did not constitute an abuse of process.

More significantly, the Court also upheld Mr Vince’s appeal in relation to the High Court granting summary judgment to Associated.

Whilst the Court acknowledged that the Charleston principle had previously been held to be applicable to a claim of inaccurate processing, it held that it did not follow that the principle had any application in a claim for unfair processing.

In fact, the Master of the Rolls, Sir Geoffrey Vos, explained that there was good reason to treat a claim for unfair processing differently and not to apply the principle in Charleston, relying heavily on the importance of the Editors’ Code of Practice and explaining that the Court was duty bound to have regard to its contents as a ‘relevant privacy code’ under section 12 of the Human Rights Act 1998.

As an aside, what was not discussed in the case is whether the Editors’ Code was deemed a ‘relevant privacy code’ because Associated in particular is regulated by IPSO (which enforces the Code) or whether the Court intended the Code to have a broader significance in unfair processing claims against all publishers, including those not regulated by IPSO.

Returning to the judgment, the Court turned to the Editors’ Code and its provision at 1(i) that “the press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text”.

In the Court’s view, applying the Code, Associated “failed to take care not to publish misleading information and images in the articles”, Sir Geoffrey Vos adding that “even if (and I say nothing about the correctness of this proposition) the headline and the images were not “inaccurate” by reason of the Charleston rule, they were certainly “misleading””.

The Code was also relevant for the purposes of analysing the applicability of the broad ‘journalism exemption’ under data protection law. In this case, the Court held it did not apply, holding that “Associated Newspapers would be unable to invoke the journalism exemption because, in having regard to the provisions of the Editors’ Code of Practice and its Accuracy Notes already mentioned, it would never be able to show, under paragraph 26(2)(b), that it reasonably believed that the publication complained of – the headline juxtaposed to the photographs of Mr Vince – was in the public interest”.

Accordingly, the Court overturned the Hight Court’s ruling, holding that it was Mr Vince, rather than Associated, who was entitled to summary judgment. Damages will be assessed at a later stage, and the Court notes that “in these circumstances, there are open questions about whether harm must be proved in a claim of this kind, whether compensation for reputational harm is recoverable, and whether Mr Vince has sufficiently made out a claim to compensation for distress”.

To read the judgment in full, click here.