the band used “Nazi symbols” and “posters” when there was only one possible
candidate for a symbol being the “S” and there was only one Dream Troll image;
there was an assertion that the band “delights” in the use of Nazi symbols without any
evidence to support that point; and there was generated a fictional political
controversy by calling Mr Elphicke, without telling him about the Black Sabbath
album cover and referring to Tories rounding on Mr Burgon when there was no
evidence of that.
113.
In my judgment, for all the detailed reasons given above, Mr Newton Dunn was acting
honestly when he wrote the story. Mr Newton Dunn did not appreciate the
significance of the hashtag Black Sabbath. He should have included the reference to
Black Sabbath in the online article but the failure was not dishonest because the
reference to Black Sabbath had not altered Mr Newton Dunn’s view. Mr Newton
Dunn did consider the font to be significant and the use of the plural was not evidence
of dishonesty. Mr Newton Dunn called Mr Elphicke because he considered there to be
story and believed rightly that Mr Elphicke would provide a comment. This
conclusion about honesty means that the claim for malicious falsehood fails.
114.
This also means that it is not necessary to consider the issue of pecuniary damage. I
therefore dismiss the claim for malicious falsehood.
Relevant principles of the DPA
115.
Section 4(4) of the DPA requires data controllers to comply with the data protection
principles. The first data protection principle requires that “personal data shall be
processed fairly and lawfully …” and requires compliance with the schedule 2
conditions. Schedule 2 sets out conditions relevant for the purposes of the first data
protection principle, and paragraph 6 requires that “the processing is necessary for the
purposes of legitimate interests pursued by the data controller or by the third party or
parties to whom the data are disclosed”.
116.
The second data protection principle requires that: “personal data shall be obtained
only for one or more specified and lawful purposes, and shall not be further processed
in any manner incompatible with that purpose or those purposes”. The fourth data
protection principle requires that: “personal data shall be accurate and, where
necessary, kept up to date”. Schedule 1, Part II at paragraph 7 provides that there will
not be a breach if having regard to the purposes for which data is obtained and
processed reasonable steps have been taken to ensure accuracy. Section 70(2) of the
DPA provides that “… data are inaccurate if they are incorrect or misleading as to any
matter of fact”. The reference to fact makes it clear that the principle is not concerned
with comment or opinion, see NT1 v Google [2018] 3 WLR 1165.
117.
Section 27(1) of the DPA provides for exemptions. A set of exemptions is set out in
Part III at section 32. This section is headed “Journalism, literature and art”. Section
32 provides: “(1) personal data which are processed only for the special purposes are
exempt from any provision to which this subsection relates if (a) the processing is
undertaken with a view to the publication by any person of any journalistic …
material, (b) the data controller reasonably believes that, having regard in particular to
the special importance of the public interest in freedom of expression, publication
would be in the public interest, and (c) the data controller reasonably believes that, in