The High Court recently gave judgment in Gubarev v Orbis Business Intelligence, a claim for libel which arose out of Buzzfeed’s publication of the ‘Trump Dossier’. This followed another case from earlier this year, Aven v Orbis Business Intelligence, which was based on the same Buzzfeed article but concerned a data protection claim. Combined, the two cases demonstrate the interesting links being made by the courts on defamation and data protection claims.

 

Background

The Trump Dossier was an intelligence memorandum prepared by Christopher Steele in December 2016 for a Democratic politician investigating potential links between Russia/Vladimir Putin and Donald Trump. The full text of this dossier was then published in a Buzzfeed article, the title of which was, “These reports allege Trump has deep ties to Russia”.

 

Data Protection – Aven v Orbis

The dossier referenced the claimants, three businessmen who were owners of a Russian investment conglomerate, and alleged that “illicit cash” deliveries were made to Putin. The claimants brought a claim under the Data Protection Act 1998, seeking damages and other remedies from Orbis for inaccurate, unlawful or unfair processing of personal data contrary to the First and Fourth Principles of that act.

Orbis denied that all of the data was personal data, that the allegation relating to “illicit cash” was sensitive personal data and that the information was inaccurate. Orbis also relied on the legal purposes and national security defences.

In his judgment, Mr Justice Warby found that the allegations did constitute personal data. The allegation regarding “illicit cash” was sensitive personal data as it was an allegation of a criminal offence in the context of an ordinary reader taking the whole article into account. He found that Orbis could rely on the legal purposes and national security exemptions, but it was still liable for breaches of its obligations of the First and Fourth Principles.

The judge concluded that Orbis was liable for inaccurate processing of the allegation regarding “illicit cash” and awarded £18,000 in damages. For data protection cases, this is a significant amount. He took what is arguably more of a ‘defamation’ approach to calculating damages, by taking into account the claimant’s distress and loss of control of data, and factoring reputation damage into the award. He also ordered that the dossier should be marked up to correct the inaccuracies.

 

Defamation – Gubarev v Orbis

Mr Gubarev was identified in the Buzzfeed article, which suggested that he and his associates were involved in Russian hacking of the Democrats in the November 2016 US presidential election. The issues put before Mr Justice Warby were:

  • Whether Orbis was responsible for the publication of the Buzzfeed article
  • The meaning of the words complained of in the article, and
  • Whether the corporate claimant had suffered serious harm.

The claimants had to demonstrate that Orbis intended republication, or had authorised it or that it was a reasonably foreseeable consequence of the original publication. Mr Justice Warby took into account the circumstances in which Buzzfeed came into possession of a copy of the dossier, and relied heavily on Christopher Steel’s evidence. In particular, that he had not provided any documents to the press and, while he had authorised some limited disclosure of to a UK intelligence official, he had not authorised any further disclosure. In addition, the journalist who had photographed the memorandum had been told not to take pictures or notes.

Mr Justice Warby explicitly condemned the journalist’s conduct as “wrongful” in taking photographs of the dossier, without which he would not have been able to provide the full text. Accordingly, Orbis was not “responsible” for publication of the Buzzfeed article.

Mr Justice Warby nevertheless examined the other two questions before him. As to meaning, he found that that the words complained of in context were defamatory of Mr Gubarev. The judge said “there were good reasons to suspect the claimants of having, under duress from the Russian Secret Service, taken part in hacking the computers used by the Democratic Party leadership, and using the access they unlawfully gained in that way to transmit a virus, plant bugs, steal data and alter files and software”.

He found that publication caused “serious harm” to Mr Gubarev’s reputation and that he would have been entitled to “substantial damages” if he had proved that Orbis were responsible in law for the publication. While he was not awarded damages, Mr Justice Warby’s confirmation that he did suffer reputational damage may offer some vindication to Mr Gubarev.

As to the corporate claimant, Mr Justice Warby confirmed that it was required to show both serious harm to its reputation and serious financial loss due to that reputational harm. As such, it had not made out its case.

 

Conclusion

These two cases demonstrate how the lines between claims under the Data Protection Act and defamation claims are increasingly blurred. Pursuing both causes of action can be a useful tool for anyone seeking to rectify damage to their reputation. This is particularly true given Mr Gubarev lost his defamation claims, and that the damages awarded in Aven were relatively high for a data privacy case. Arguably, Mr Justice Warby followed defamation principles when calculating the award. This more ‘holistic’ approach in Aven may be one that the Media and Communications Court takes in similar cases going forward.

 

This article was co-written by Paralegal Palomi Kotecha

 


 

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