¹ Robertson, G. and Nicol, A., Media Law (London 2007), 93Google Scholar.

² C-131/12, Google Spain, Google Inc. v Agencia Espaňola de Protección de Datos (AEPD), Mario Costeja González, Judgment of 13 May 2014, not yet reported.

³ Solove, D.J., The Future of Reputation (New Haven, CN 2007), 30–31Google Scholar.

⁴ Lidsky, L.B., “Defamation, Reputation, and the Myth of Community” (1996) 71 Washington L.Rev. 19Google Scholar.

⁵ Sim v Stretch [1936] 2 All E.R. 1237 (HL).

⁶ Lidsky, “Defamation, Reputation, and the Myth of Community”, p. 7.

⁷ Ibid., passim.

⁸ Ibid., passim.

⁹ Rodgers, W.V.H., Winfield & Jolowicz on Tort (London 2010), 601Google Scholar.

¹⁰ ECHR (ETS No. 5), Article 10.

¹¹ R. v Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115, 126.

¹² Ibid.

¹³ Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389), Article 11.

¹⁴ Axel Springer v Germany (Application no. 39954/28) (2012) 55 E.H.R.R. 6.

¹⁵ Article 8, EU Charter of Fundamental Rights.

¹⁶ Axel Springer (Application no. 39954/28) (2012) 55 E.H.R.R. 6, at para. [84].

¹⁷ Axel Springer (Application no. 39954/28) (2012) 55 E.H.R.R. 6, at para. [87].

¹⁸ S (A Child) (Identification: Restrictions on Publication), Re [2004] UKHL 47; [2005] 1 A.C. 593 at [17] (per Lord Steyn). For further analysis of this approach, see Fenwick, H., “Judicial Reasoning in Clashing Rights Cases” in Fenwick, H., Phillipson, G. and Masterman, R. (eds.), Judicial Reasoning under the UK Human Rights Act (Cambridge 2011)Google Scholar, ch. 10.

¹⁹ Robertson and Nicol, Media Law, p. 95.

²⁰ Rimel, K., “A New Public Interest Defence for the Media? The House of Lords’ Decision in Reynolds v Times Newspapers Ltd.” (2000) 11 Ent.L.R. 36Google Scholar. Whilst Rimel limited her evaluation to libel, it seems a fair analysis of the general nature of English defamation law prior to recent developments.

²¹ Wennhak v Morgan (1888) 20 Q.B.D. 635 (HC).

²² Sim [1936] 2 All E.R. 1237 (HL).

²³ Youssoupoff v MGN Pictures Ltd (1934) 50 T.L.R. 581 (CA).

²⁴ Byrne v Deane [1937] 1 K.B. 818 (CA), 833, per Slesser L.J.

²⁵ Milo, D., Defamation and Freedom of Speech (Oxford 2008), 11Google Scholar.

²⁶ Broadcasting Act 1990, s. 116; Yousoupoff (1934) 50 T.L.R. 581 (CA).

²⁷ Milo, Defamation and Freedom of Speech, p. 11.

²⁸ Cassell & Co. v Broome [1972] A.C. 1027 (HL), 1071, per Lord Hailsham.

²⁹ Ibid.

³⁰ Senior Courts Act 1981, s. 69.

³¹ Bonnard v Perryman [1891] 2 Ch. 269 (CA).

³² Courts and Legal Services Act 1990, s. 8; Rantzen v Mirror Group Newspapers Ltd. (1986) [1994] Q.B. 670 (CA); and John v Mirror Group Newspapers Ltd. [1997] Q.B. 586 (CA).

³³ As regards most legal actions, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 now generally prohibits such cost-shifting. However, as a result of Conditional Fee Agreements Order, SI 2013/689, the commencement of this reform in relation to both defamation and privacy proceedings has currently been stayed.

³⁴ Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, 192, per Lord Nicholls.

³⁵ Broadly construed under the Parliamentary Papers Act 1840, s. 1.

³⁶ Defamation Act 1996, s. 14.

³⁷ Joseph v Spiller [2010] UKSC 53; [2011] 1 A.C. 852.

³⁸ Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] All E.R. 449 (HL), 461 (Lord Porter).

³⁹ London Artists v Littler [1969] 2 Q.B. 375, 391, per Lord Denning.

⁴⁰ Clarke v Molyneux (1877) 3 Q.B.D. 237, 246.

⁴¹ See Defamation Act 1952 and both Defamation Act 1996, Sch. 1, Part 1 (qualified privilege not subject to explanation or contradiction) and Defamation Act 1996, Sch. 1, Part 2 (qualified privilege subject to allowing for explanation or contradiction by those persons referred to).

⁴² Reynolds [2001] 2 A.C. 127, at p. 202, per Lord Nicholls.

⁴³ Ibid., at p. 197. As Rimel (note 20 above) states, prior to this judgment, such privilege was “not recognised as applying to statements published by the media to the general public except, possibly, in cases of extreme emergency” (p. 37).

⁴⁴ Reynolds [2001] 2 A.C. 127, at p. 202.

⁴⁵ Ibid., at p. 205.

⁴⁶ Loveland, I. “The Ongoing Evolution of Reynolds Privilege in Domestic Libel Law” (2003) 14 Ent.L.R. 178, 182Google Scholar.

⁴⁷ Ibid.

⁴⁸ Jameel & Or v Wall Street Journal [2006] UKHL 44, [2007] 1 A.C. 359 at [56], per Lord Hoffmann.

⁴⁹ Ibid., at para. [33], per Lord Bingham.

⁵⁰ Ibid., at para. [54], per Lord Hoffmann. See more specifically Charman v Orion Publishing Ltd. [2007] EWCA Civ 97; [2008] 1 All E.R. 750; Seaga v Harper [2008] UKPC 9; [2009] 1 A.C. 1.

⁵¹ This defence can be claimed by a range of secondary publishers including “the operator of … a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control”. However, such a publisher must demonstrate that he “took reasonable care in relation to its publication” and “did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement”.⁵⁷ In Godfrey v Demon Internet [2001] Q.B. 201, an Internet Service Provider (IPS) sought to rely on this defence in relation to the republication of an anonymous posting made on a US-based newsgroup. However, the defence was struck out on the basis that the defendant had not removed posting on notice and, therefore, had inter alia failed to take reasonable care in relation to it.

⁵² See Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013). This “hosting” shield only applies if upon obtaining knowledge of illegal activity or information, or even facts or circumstances from which such illegality is apparent, the provider “acts expeditiously to remove or to disable access to the information” (para. 19(a)(ii)). See also the related defences for mere conduit (para. 17) and caching (para. 18).

⁵³ Leveson, B., An Inquiry into the Culture, Practices and Ethics of the Press (London 2012), 999Google Scholar.

⁵⁴ Ibid.

⁵⁵ Bundesdatenschutzgesetz (BDSG) 1977, s. 1(1). This is translated as ensuring against “misuse”, “to prevent harm to any personal interests that warrant protection”. See Gesellshaft für Datzenschutz under Datensicherung, Law on the Protection Against the Misuse of Personal Data in Data Processing (Frankfurt am Main 1977).

⁵⁶ Loi no. 78–17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés, art. 1 (“must not undermine human identity, nor human rights, nor privacy, nor individual or public liberties” (own translation)).

⁵⁷ Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108), Art. 1.

⁵⁸ Council Directive (EC) No. 95/46 (OJ 1995 L 281 p. 31), Recital 11. Although the Council of Europe Convention remains in full force, it is the EU Directive which was assumed must the greater practical importance.

⁵⁹ Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108) Explanatory Report, para. 25 (“[T]he unfettered exercise of the freedom to process information may, under certain conditions, adversely affect the enjoyment of other fundamental rights (for example privacy, non-discrimination, fair trial) or other legitimate personal interests (for example employment, consumer credit). It is in order to maintain a just balance between the different rights and interests of individuals that the convention sets out certain conditions or restrictions with regard to the processing of information. No other motives could justify the rules which the Contracting States undertake to apply in this field”).

⁶⁰ Council Directive (EC) No. 95/46, Recital 30 (stating that processing otherwise compatible with the Directive will be lawful so long as it carried “in the legitimate interests of the natural or legal person, providing that the interests or the rights and freedoms of the data subject are not overriding”). Comparing the English language version of the Directive with that of the French and German, it is clear that, but for a typographical error, this same wording would be reflected in Art. 7(f). Instead, this article refers to the “interests for fundamental rights and freedoms of the data subject”.

⁶¹ It should be noted that Data Protection Authorities took an early interest in policing threats to such interests. For example, even in the mid-1980s, the French DPA, when assessing a new electronic messaging service, stressed the dangers of “risque de diffusion messages anonymes injurieux ou portant atteinte à la réputation des personnes” Commission nationale de l“informatique et des libertés, 7^e rapport d'activité (Paris 1986), p. 136.

⁶² Charter of Fundamental Rights, Article 8.

⁶³ Jay, R., Data Protection Law and Practice, 4thed. (London 2012), 1Google Scholar.

⁶⁴ DPA, s. 1(1). Cf. Data Protection Directive, art. 2(b).

⁶⁵ Formally defined as “equipment operating automatically in response to instructions given for that purpose” (DPA, s. 1(1)).

⁶⁶ Defined as one which is “structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible” (DPA, s. 1(1)).

⁶⁷ C-101/01, Criminal Proceedings against Lindqvist [2003] ECR I-12971 at [26].

⁶⁸ DPA, s. 1(1).

⁶⁹ Jay, Data Protection Law and Practice, p. 171.

⁷⁰ “Amendments Likely on Data Protection”, Bookseller, 5 July 1991, p. 8.

⁷¹ DPA, s. 1(1).

⁷² Ibid.

⁷³ E-Commerce Directive, art. 1(5)(b).

⁷⁴ Electronic Commerce (EC Directive) Regulations, SI 2002/2013, para. 3(1)(b).

⁷⁵ DPA, Sch. 1, Part 1.

⁷⁶ DPA, Sch. 1, Part 1, para. 1.

⁷⁷ DPA, Sch. 1, Part 1, para. 3.

⁷⁸ DPA, Sch. 1, Part 1, para. 4.

⁷⁹ DPA, s. 70(2).

⁸⁰ DPA, Sch. 1, Part 2, paras. 1–3 and Data Protection (Conditions Under Paragraph 3 of Part II of Schedule 1) Order, 2000, SI 2000/85.

⁸¹ DPA, s. 7.

⁸² DPA, s. 10.

⁸³ DPA, s. 13.

⁸⁴ DPA, s. 14(1).

⁸⁵ DPA, s. 13(3).

⁸⁶ Data Protection Directive, art. 28.

⁸⁷ DPA, s. 40.

⁸⁸ DPA, s. 55A.

⁸⁹ DPA, s. 42.

⁹⁰ DPA, Sch. 1, Part 2, para. 7.

⁹¹ DPA, s. 13(2)(b).

⁹² Ibid.

⁹³ DPA, s. 13(3).

⁹⁴ See DPA, s. 10(4) (right to stop processing) and s. 14(1) (right to erasure and rectification).

⁹⁵ DPA, s. 32.

⁹⁶ DPA, s. 32(4)(b).

⁹⁷ See DPA, s. 46.

⁹⁸ DPA, s. 36. Cf. Data Protection Directive, art 3(2).

⁹⁹ Durant v Financial Services Authority [2003] EWCA Civ 1746; [2003] All E.R. (D) 124 (Dec), 28. The ratio of the Durant case appears to have been side-lined by later case law even in the domestic context. Thus, in the recent case of Edem v Information Commissioner, Financial Services Authority [2014] EWCA Civ 92, the Court of Appeal recently stated that all information which was “obviously about” an individual would be personal data (at para. [22]) and further found that even “[a] name is personal data unless it is so common that without further information … a person would remain unidentifiable despite its disclosure” (at para. [20]).

¹⁰⁰ [2007] EWCA Civ 262, 78; [2007] 3 CMLR 9 at [76].

¹⁰¹ See Information Commissioner, Line to Take–Dealing with Complaints about Information Published Online (2011) <www.ico.org.uk/about_us/how_we_comply/disclosure_log/~/media/documents/disclosure_log/IRQ0417298b.ashx> accessed 19 August 2014.

¹⁰² Data Protection Directive, art. 6.

¹⁰³ Data Protection Directive, art. 22.

¹⁰⁴ Data Protection Directive, art. 13(1)(g).

¹⁰⁵ Council of the European Union, Council Document 4730/95 (Annex I) (8 February 1995) (on file with the author).

¹⁰⁶ C-465/00, Rechnungshof v Österreichischer Rundfunk [2003] ECR I-4989, at [91], [93].

¹⁰⁷ The subject of specifically permissive regulation under the Data Protection Directive, art 9.

¹⁰⁸ C-73/07, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] ECR I-09831 at [56].

¹⁰⁹ Lindqvist [2003] ECR I-12971, at para. [47].

¹¹⁰ Robertson and Nicol, Media Law, p. 113.

¹¹¹ Defamation Act 1952, s. 3(1).

¹¹² In other words, that the statement was made without caring whether it was true or false.

¹¹³ Shapiro v La Mora [1923] All E.R. Rep 378.

¹¹⁴ Dunlop v Maison Talbot (1904) 20 T.L.R. 579 (CA).

¹¹⁵ Greers Ltd v Pearman & Corder Ltd (1922) 39 R.P.C. 406, 417 (CA).

¹¹⁶ Defamation Act 2013 (Commencement) (England and Wales) Order 2013, SI 2013/3027.

¹¹⁷ The Act has no application to Northern Ireland. As regards Scotland, only ss. 6, 7(9), 15, 16(5), and 17(3) apply. These relate to the new defence for peer-reviewed statements in scientific or academic journals – a matter which has little relevance to the subject of this article. See Defamation Act 2013, s. 17(2)–(3).

¹¹⁸ Phillipson, G., “The ‘Global Pariah’, the Defamation Bill and the Human Rights Act” (2012) 63 N.I.L.Q. 146Google Scholar.

¹¹⁹ Defamation Act 2013, s. 1.

¹²⁰ Defamation Act 2013, s. 2 (replacing common law justification).

¹²¹ Defamation Act 2013, s. 3 (replacing common law fair comment).

¹²² Defamation Act 2013, s. 4 (replacing the common law Reynolds defence).

¹²³ Defamation Act 2013, s. 5 (provision for a new defence to defamation action brought against operators of websites), s. 6 (qualified privilege in relation to peer-reviewed statements in scientific or academic journals), and s. 7 (provision for qualified or absolute privilege in relation to a range of either verbatim or summarised reports).

¹²⁴ Defamation Act 2013, s. 8.

¹²⁵ Defamation Act 2013, s. 11.

¹²⁶ As regards the latter, the wording that the defendant need only have “reasonably believed that publishing the statement complained of was in the public interest” (s. 4(1)(b)) may be thought to have widened the defence by introducing a greater subjective element. However, the Government (which proposed the wording) was clear that “the intention in this provision is [merely] to reflect the existing common law as most recently set out in Flood v Times Newspapers”. See Ministry of Justice, Defamation Act 2013 Explanatory Notes (2013) <http://www.legislation.gov.uk/ukpga/2013/26/notes> accessed 10 April 2014.

¹²⁷ Defamation Act, s. 1.

¹²⁸ Milo, Defamation and Freedom of Speech, p. 11.

¹²⁹ Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] Q.B. 946 at [70].

¹³⁰ Ibid., at para. [55].

¹³¹ Thornton v Telegraph Group [2010] 1 W.L.R. 1986 at [100].

¹³² Phillipson, “The ‘Global Pariah’”, p. 168.

¹³³ Ministry of Justice's Defamation Act 2013 Explanatory Notes, p. 3.

¹³⁴ Joseph [2010] UKSC 53; [2011] 1 A.C. 852.

¹³⁵ Ibid., at para. [108].

¹³⁶ Ibid.

¹³⁷ Ibid.

¹³⁸ The rewording also allows defamatory opinions related to facts which, though false, where “asserted to be a fact” on a certain privileged occasions (Defamation Act 2013, s. 3(4)(b)) including publication on a matter of public interest or of a peer-reviewed statement in a scientific or academic journal (ibid., s. 3(7)).

¹³⁹ Phillipson, “The ‘Global Pariah’”, p. 178 (emphasis).

¹⁴⁰ Mosley v News Group Newspapers [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20.

¹⁴¹ Defamation Act 2013, s. 7(1).

¹⁴² Defamation Act 2013, ss. 7(4)–(9). In order to benefit from these new defences, however, the publisher must satisfy either a “public interest” or “public benefit” test (see s. 7(2) read with s. 15(3)) and also ensure that, if the subject of the statement so requests, he publishes “in a suitable manner a reasonable letter or statement by way of explanation or contradiction” (s. 15(2)(a)).

¹⁴³ Defamation Act 2013, s. 6.

¹⁴⁴ Defamation Act 2013, s. 5(1).

¹⁴⁵ SI 2013/3028.

¹⁴⁶ Ibid., at para. 3(1).

¹⁴⁷ Ibid., at para. 2.

¹⁴⁸ Ibid., at para. 5.

¹⁴⁹ Ibid., at para. 6.

¹⁵⁰ Ibid., at para. 6(3).

¹⁵¹ Ibid., at para. 8(2)(i).

¹⁵² Ibid., at para. 8(2)(ii).

¹⁵³ It should be noted that, if a successful action is brought against the poster, then the court is empowered to order the operator of the website to remove the statement (Defamation Act 2013, s. 13(1)(a)).

¹⁵⁴ SI 2002/2013. This “hosting” shield only applies if upon obtaining knowledge of illegal activity or information, or even facts or circumstances from which such illegality is apparent, the provider “acts expeditiously to remove or to disable access to the information” (para. 19(a)(ii)). See also the related defences for mere conduit (para. 17) and caching (para. 18).

¹⁵⁵ Defamation Act 2013, s. 5(12).

¹⁵⁶ HC, Public Bill Committee, Defamation Bill Deb., 21 June 2012, col. 132 (Jonathan Djanogly M.P., Parliamentary Under-Secretary of State).

¹⁵⁷ Defamation Act 2013, s. 5(11).

¹⁵⁸ HL Deb., vol. 742, col. GC 195 (15 January 2013) (Lord Ahmed of Wimbledon, Government Whip).

¹⁵⁹ Defamation Act 2013, s. 10.

¹⁶⁰ Limitation Act 1980, s. 4A.

¹⁶¹ For the seminal statement of this rule, see Duke of Brunswick v Harmer [1849] 14 Q.B. 185.

¹⁶² As it was in Loutchansky v Times Newspapers Limited [2001] EWCA Civ 1805.

¹⁶³ Phillipson, “The ‘Global Pariah’”, p. 181.

¹⁶⁴ Or a “section of the public” (Defamation Act 2013, s. 8(2)).

¹⁶⁵ Defamation Act 2013, s. 8(1)(b).

¹⁶⁶ Defamation Act 2013, s. 8(4).

¹⁶⁷ Limitation Act 1980, s. 32A. For a similar provision regarding personal injuries or death, see ibid., s. 33.

¹⁶⁸ Phillipson, “The ‘Global Pariah’”, p. 183.

¹⁶⁹ The last change in primary legislation was made in 2008 when provisions empowering the Information Commissioner to impose monetary penalties on data controllers were introduced. See Data Protection Act 1998, s. 55A as amended by Crime Justice and Immigration Act 2008, s. 144. These provisions were brought fully into forced on 6 April 2010 as a result of the Data Protection (Monetary Penalties) Order, SI 2010/910.

¹⁷⁰ Quinton v Peirce [2009] EWHC 912 (QB), [2009] F.S.R. 17.

¹⁷¹ Ibid., at para. [59].

¹⁷² Ibid., at para. [57].

¹⁷³ Ibid., at para. [4]. From the context, it is clear that Eady J. was talking about the special provisions regulating processing for the purposes of journalism, artistic purposes, and literary purposes as set out, in particular, in DPA, s. 32.

¹⁷⁴ Ibid., at para. [92].

¹⁷⁵ Phillipson, “The ‘Global Pariah’”, p. 186.

¹⁷⁶ Quinton [2009] EWHC 912 (QB), [2009] F.S.R. 17, at para. [93].

¹⁷⁷ Ibid., at para. [68].

¹⁷⁸ Aldhouse, F., “Political Opinions: Injurious Falsehood: Quinton v. Peirce & Cooper” (2009) 6 Data Protection Law and Policy 7Google Scholar.

¹⁷⁹ Österreichischer Rundfunk [2003] ECR I-4989.

¹⁸⁰ Aldhouse, “Political Opinions”, p. 8.

¹⁸¹ M. Tugendhat, “The Data Protection Act 1998 and the Media” (1999) Yearbook of Copyright and Media Law 115.

¹⁸² Clift v Slough Borough Council [2009] EWHC 1550 (QB); [2010] E.M.L.R. 4.

¹⁸³ Clift v Slough Borough Council [2010] EWCA Civ 1171; [2011] 1 W.L.R. 1774.

¹⁸⁴ Clift v Slough Borough Council (HC), at para. [128].

¹⁸⁵ Kearns v General Council of the Bar [2003] EWCA Civ 331.

¹⁸⁶ Clift v Slough Borough Council (HC), at para. [55] (citing Kearns [2003] EWCA Civ 331, at para. [53]).

¹⁸⁷ Clift v Slough Borough Council (HC), at para. [23]. However, at para. [99], Tugendhat J. held that, even if he had accepted such an “established relationship” approach, he would have rejected its applicability in the case of publication to partnership organisations or non-employees since these entities were not in an established relationship with the Defendant.

¹⁸⁸ An aspect of her art. 8 right to respect for private life.

¹⁸⁹ Clift v Slough Borough Council (CA), at para. [38].

¹⁹⁰ As detailed at para. [43] of Clift v Slough Borough Council (HC), Ms Clift had originally brought a claim under the DPA alleging that the Registrar acted in violation of the Act's accuracy requirements. Moreover, it appears that, separately from the defamation proceedings, she was continuing to pursue proceedings specific to the DPA (at para. [71]). Tugendhat J. left open the possibility that she may have wider rights in relation to the DPA than were vindicated in her defamation action (at para. [88]).

¹⁹¹ Kearns [2003] EWCA Civ 331, at para. [45], cited in Clift v Slough Borough Council (HC), at para. [121].

¹⁹² Clift v Slough Borough Council (HC), at para. [122].

¹⁹³ Ibid., at para. [120].

¹⁹⁴ Ibid., at para. [118].

¹⁹⁵ Clift v Slough Borough Council (CA), at para. [19].

¹⁹⁶ Ibid., at para. [35].

¹⁹⁷ Clift v Slough Borough Council (HC), at para. [104].

¹⁹⁸ Law Society, Hine Solicitors & Kevin McGrath v Rick Kordowski [2011] EWHC 3185 (QB) at [1].

¹⁹⁹ Ibid., at para. [10].

²⁰⁰ Ibid., at para. [9]. It was also clear that, on occasion, the ability of the defendant to delete material from the website had “been used as a tool to demand money from those it names” (at para. [116]).

²⁰¹ Ibid., at para. [1].

²⁰² Ibid., at paras. [132]–[134]. Breach of the DPA's accuracy provisions was not directly considered.

²⁰³ Ibid, at paras. [139]–[142].

²⁰⁴ For completeness, it should be noted that Tugendhat J. found that the Law Society itself did not itself have such a common interest. He therefore held that the action for the Represented Claimants (i.e. the other solicitors) should be continued by the Second and Third Claimants rather than the Law Society as the Claimants themselves had proposed. See ibid., at para. [165].

²⁰⁵ Ibid., at para. [163].

²⁰⁶ Ibid., at para. [164].

²⁰⁷ Ibid., at para. [184].

²⁰⁸ Bonnard [1891] 2 Ch. 269 (CA).

²⁰⁹ It should be noted that Tugendhat J. did find it possible to grant a perpetual injunction under the Protection from Harassment Act 1997 (see ibid., at paras. [163]–[164]). Consideration of this statute, however, is outside the scope of this article.

²¹⁰ Law Society [2011] EWHC 3185 (QB), at para. [166].

²¹¹ Quoted in Law Society [2011] EWHC 3185 (QB), at para. [96].

²¹² Ibid., at para. [100].

²¹³ Ibid.

²¹⁴ Ibid, at para. [99].

²¹⁵ Google Spain, at para. [98].

²¹⁶ Ibid., at para. [33].

²¹⁷ Ibid., at para. [85].

²¹⁸ Ibid., at para. [38].

²¹⁹ Ibid., at para. [93].

²²⁰ Ibid., at para. [97].

²²¹ Ibid., at para. [98].

²²² Jay, Data Protection Law and Practice, p. 20.

²²³ B. Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, p. 999.

²²⁴ Ibid., at p. 1061.

²²⁵ Ibid., at p. 1107. It should be noted that Kordowski actually rejected the proposition that the website Solicitors From Hell could benefit from the DPA's special protections for processing for the purposes of journalism, artistic purposes, and literary purposes (s. 32). Whilst acknowledging that “[t]oday anyone with access to the internet can engage in journalism at no cost”, it also found that the “[j]ournalism that is protected by s. 32 involves communication of information or ideas to the public at large in the public interest” (at para. [99]). It is certainly true that the DPA requires that the data controller has a reasonable belief that publication is the public interest to benefit from s. 32's substantive protections (ss. 32(1)–(2)). This requirement was clearly not met in this case. As regards the procedural protection from injunctive relief, however, s. 32 only expressly requires that the data controller claims or it appears to the court that processing is only for the purposes of journalism, artistic purposes, and/or literary purposes, and with a view to the publication of material not previously published by the data controller 24 hours previously (ss. 32(4)–(6)). It seems, therefore, that Tugendhat J. implied into the DPA's definition of the purposes of journalism, artistic purposes, and literary purposes some kind of public interest threshold.

²²⁶ Ibid., at p. 1811.

²²⁷ Ibid., at p. 1811.

²²⁸ Ibid., at p. 1812.

²²⁹ Ibid., at p. 1810.

²³⁰ Ibid., at p. 1810.

²³¹ Ibid., at p. 1810.

²³² Ibid., at p. 1813.

²³³ Letter from Rt Hon Chris Grayling, Lord Chancellor and Secretary of State for Justice, to the Chair of the House of Commons Home Affairs Select Committee, 22 September 2013 <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/524/524we29.htm > accessed 20 August 2014.

²³⁴ Information Commissioner's Office, “Social Networking and Online Forums – When Does the DPA Apply?” <ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Detailed_specialist_guides/social-networking-and-online-forums-dpa-guidance.ashx> accessed 9 April 2014.

²³⁵ Ibid., at p. 15. At other times, however, the Office has acknowledged the validity of the CJEU's Lindqvist ruling (also confirmed in Satamedia). For example, giving evidence to the House of Commons’ Justice Committee on 4 September 2013, the current Information Commissioner Christopher Graham stated: “There is European case law that says–in a nutshell–that open online publication means the processing of personal data done in connection with this falls outside data protection law’s ‘domestic purposes’ exemption”, House of Commons, Justice Committee, The Committee's Opinion on the European Union Data Protection Framework Proposals Volume I (London 2010), Evidence 57.

²³⁶ Information Commissioner's Office, note 233 above, p. 16.

²³⁷ The rationale offered by the guidance was as follows: “If the site only allows posts subject to terms and conditions which cover acceptable content, and if it can remove posts which breach its policies on such matters, then it will still, to some extent, be determining the purposes and manner in which personal data is processing. It will therefore be a data controller” (ibid., at p. 11).

²³⁸ Ibid., at p.12.

²³⁹ Ibid., at pp. 13–14. Seemingly as an alternative to the stipulation to remove material, the guidance states that the site “might wish to set up a mechanism which allows it to add a note to a post indicating that a data subject disputes its factual accuracy”. The ICO's position nevertheless remains that “it will be probably be more practical for the site to simply remove or suspend access to the dispute post in this type of situation” (p. 14). In any case, following the interpretation of “reasonable care” established in relation to the Defamation Act 1996 in Godfrey [2001] Q.B. 201, it would appear that, if the data subject presented clear evidence that the information processed was in fact inaccurate, the data controller would not have taken “reasonable steps” unless any note made clear that this was indeed the case.

²⁴⁰ Ibid., at p. 14.

²⁴¹ Information Commissioner's Office, ICO Response to the European Union Court of Justice Ruling on Online Search Results <http://ico.org.uk/news/latest_news/2014/ico-response-to-european-union-court-of-justice-ruling-14052014> accessed 19 August 2014.

²⁴² Information Commissioner's Office, Data Protection and Journalism: A Guide for the Media <http://ico.org.uk/~/media/documents/library/Data_Protection/Detailed_specialist_guides/data-protection-and-journalism-media-guidance.pdf> accessed 22 September 2014.

²⁴³ Ibid., at p. 27.

²⁴⁴ Ibid., at p. 28.

²⁴⁵ Ibid., at p. 13–14.

²⁴⁶ Defamation Act 2013, s. 1.

²⁴⁷ Sim [1936] 2 All E.R. 1237 (HL).

²⁴⁸ Mullis, A. and Scott, A., “Tilting at Windmills: The Defamation Act 2013” (2014) 77 M.L.R. 107Google Scholar.

²⁴⁹ Defamation Act 2013, s. 3.

²⁵⁰ Defamation Act 2013, s. 5.

²⁵¹ Either because the defendant cannot in fact be traced or is impecunious or is out of jurisdiction.

²⁵² Bonnard [1891] 2 Ch. 269 (CA).

²⁵³ H. Tomlinson, Revisited and Updated: Strasbourg on Privacy and Regulation Part 3: A Balance between Reputation and Expression? (Inforrm's Blog 23 June 2010) <http://inforrm.wordpress.com/2010/06/23/revisited-and-updated-strasbourg-on-privacy-and-reputation-part-3-%E2%80%9Ca-balance-between-reputation-and-expression%E2%80%9D/> accessed 17 April 2013.

²⁵⁴ Hurst, A. and Gilbert, J., “Using DP Act to Protect Reputation” (2013) 66 P.L.&B.U.K.N. 16Google Scholar.

²⁵⁵ Limitation Act 1980, s. 4A.

²⁵⁶ For full details, see note 33 above.

²⁵⁷ DPA, s. 13(3). The court must consider such an understanding “reasonably practicable”.

²⁵⁸ Clift v Slough Borough Council (HC), at para. [120].

²⁵⁹ Ibid., at para. [70].

²⁶⁰ As previously noted, given removal of the “public interest” requirement from the “honest opinion” defence in the new Defamation Act 2013 (s. 3), it seems clear that defamation law will no longer provide any redress in these cases. The possibility of the DPA stepping into the breach as a result has already been briefly mooted by Phillipson, “The ‘Global Pariah’”, p. 178.

²⁶¹ Hurst and Gilbert, “Using DP Act to Protect Reputation”, p. 18.

²⁶² Limitation Act 1980, s. 2.

²⁶³ DPA, s. 42. Moreover, although his powers are somewhat circumscribed where the processing in question is solely journalistic, literary, or artistic, in these cases, the Commissioner can also be required to consider providing assistance to the claimant in DPA civil proceedings against the relevant data controller. See DPA, s. 53.

²⁶⁴ Home Office, Consultation Paper on the EC Data Protection Directive (95/46/EC) (London 1996), 5.