The English High Court has recently awarded damages in a data privacy case, with two features of particular interest.  First, the nature of the claim is more reminiscent of a claim in defamation than for data privacy breaches, which is a development in the use of data protection legislation.  Secondly, the damages awarded (perhaps influenced by the nature of the case) were unusually high for a data privacy case.

The decision highlights an unusual use of data protection in English law, as a freestanding form of quasi-defamation claim, as the claimants sought damages for reputational harm (as well as distress) solely under the Data Protection Act 1998 (the “DPA”, since replaced by the Data Protection Act 2018, which implemented the General Data Protection Regulation ((EU) 2016/679) (GDPR) in the UK) rather than in a libel or defamation claim, or in parallel with such a claim.  It also sets a potentially unhelpful precedent by awarding two of the claimants £18,000 each for inaccurate processing of their personal data, an amount that is significantly higher than has been awarded in other data protection cases brought under the DPA.  If such awards were to be made in the context of a class action, the potential liability for data controllers could be significant.
Continue Reading English High Court Awards Damages for Quasi-Defamation Data Claim

Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer.  In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer.  The employee commented on the status, “I owe too.  Such an asshole,” and was discharged.  A second employee, who “liked” the former employee’s status, was discharged as well.

Section 7 of the National Labor Relations Act provides, in relevant part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices.  Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
Continue Reading NLRB Finds Employee’s Facebook “Like” and Comment Protected By Labor Law

By Dan Cooper and Colin Warriner

On 10 October 2013, the European Court of Human Rights (ECHR) ruled that finding the owners of an online news portal liable for offensive comments posted by its users did not violate their right to freedom of expression.  Reactions to the ruling (which may still be appealed to the Grand Chamber of the Court) have largely focused on the fact that the ECHR cited the anonymity of the commentators as a factor in its decision; many headlines have sounded the death knell for online anonymity.  However, the impact of the decision might not be so drastic.  

Delfi AS owns one of Estonia’s largest news websites.  In January 2006, it published an article about changes to a ferry company’s route that attracted many offensive and threatening comments about the ferry owner from users of the site.  The ferry owner successfully sued Delfi for defamation, and the Estonian court awarded it 5,000 kroons (€320).  The Estonian Supreme Court dismissed Delfi’s appeal in 2009, so Delfi went to the ECHR to complain that being held liable for its readers’ comments violated its freedom of expression under Article 10 of the European Convention on Human Rights.

Continue Reading European Court of Human Rights holds website liable for offensive anonymous comments