Learn more about how Lewisham Council breached my rights under the Data Protection Act 1998 and the Human Rights Act 1998.
Please see the Data Protection Breaches section for the details about the actual breaches by Lewisham Council.
Data Protection Act : What the Law says
The first principle requires the processing to be fair and lawful and to take place with the data subject’s consent. Individuals should be able to choose whether or not their personal data is disclosed to a third-party, unless one of the Data Protection Act’s specific exemptions applies. In this case it is clear that they do not:
Lewisham Council is a public authority and therefore should only be entitled to rely on the defence “qualified privilege” in respect of a defamatory publication if it the publication was consistent with its public law duties; if the related investigation has been fairly conducted; if the subsequent investigation report and hearing outcome
(a) is about a serious matter of genuine public interest
(b) only contains judgments and apportionment of blame where they are supported by the factual findings, and
(c) only contains criticisms of people which have been put to them in advance of publication, with an opportunity for them to respond and, subject to the requirements of observing confidentiality, those responses are fairly represented in the report
(d) should only publish information disclose or the purpose of and to the extent necessary for performance of its public duty and in accordance with its obligations under the HRA;
A public authority should only be entitled to rely on the defence “qualified privilege” in respect of a defamatory publication if it the publication was consistent with its public law duties; if the related investigation has been fairly conducted; if the subsequent investigation report and hearing outcome only contains criticisms of people which have been put to them in advance of publication, with an opportunity for them to respond and, subject to the requirements of observing confidentiality, those responses are fairly represented in the report;
1.1. The Data Protection Act defines personal data as that which relates to a living individual who can be identified. Data is defined as information which is processed automatically or recorded with the intention to process automatically or recorded as, or with the intention that it be, part of a manual ‘relevant filing system’ which is further defined in the Act. ‘Processing’ of the data is widely defined and covers all manner of use including obtaining, recording, holding, altering, retrieving, destroying or disclosing data. The First Principle of the act relates to processing of any personal data. Lewisham Council failed to seek my consent in relation to this. In particular, if anyone is deceived or misled when the information is obtained, then this is unlikely to be fair;
1.2. More stringent protection is provided for sensitive data, which includes data about racial or ethnic origin, physical or mental health or condition, and sexual life;
1.3. In the case of the processing of sensitive personal data, at least one of the conditions in Schedule 3 of the DPA must also be met. In order for sensitive personal data to be processed fairly it must meet one of the conditions in Schedule 3 as well as at least one of the conditions in Schedule 2;
1.4. The means used to impair my Article 8 rights were more than was necessary to accomplish any legitimate aim and a fair balance was not struck between the my rights and the interests of Lewisham Council.
Such a balance would have been properly struck if and only if the Defendants’ had:
a) properly investigated the allegations and seeking proper corroboration of the allegations;
b) put the allegations to me and given me a proper opportunity to respond and
c) after making such an investigation and taking my response into account, and having decided to write and/or utter and/or publish the words complained of, written/said in qualified terms, making clear the low status of the evidence relied on and the unverified nature of the conclusions.
The reference to lawfully‘ in the First Data Protection Principle applies to any form of conduct that is unlawful, including breach of confidence, libel, and harassment. As Patten J said in Murray v Express Newspapers Ltd  EWHC 1908 (Ch)  EMLR 22 at para :
‘It seems to me that the reference to lawfully in Schedule 1, Part 1 must be construed by reference to the current state of the law in particular in relation to the misuse of confidential information. The draftsman of the Act has not attempted to give the word any wider or special meaning and it is therefore necessary to apply to the processor of the personal data the same obligations of confidentiality as would otherwise apply but for the Act’
As Patten J made clear in Murray, where the DPA applies, if processing is unlawful by reason of it breaching the general law of confidentiality (and thus any other general law) there will be a contravention of the First Data Protection Principle within the meaning of s.40(1), and a breach of s.4(4) of the DPA.
See also Douglas v Hello! Ltd  EWHC 786 (Ch)  3 All ER 996 paras 230-239 and Clift v Slough Borough Council  EWHC 1550 (QB)  4 All ER 756.
It is clear that the Lewisham Council cannot hide behind the cloak of qualified privilege where they have not complied with their obligations under human rights law and their responsibilities under the Data Protection Act 1998. It is obligated under the HRA 1998 to respect my Art 8 right to my reputation and therefore under a duty not to publish the offending material.
The Court as a public authority is equally under a duty to ensure that Convention rights are respected.
Since my Art 8 right to the protection of my reputation must be respected by both Court and Lewisham Council, if Lewisham Council was prevented by operation of the HRA 1998 from publishing, it therefore lost the foundation for its claim to qualified privilege.
The defamatory publications that Lewisham Council produced about me and disclosed to third-parties were not consistent with its public law duties.
I stated that Lewisham Council did not have a duty or interest to communicate information that it had disclosed unfairly, (contrary to the Data Protection Act 1998, see Desmond v Foreman and others  EWHC 1900 (QB)), to external note-takers, (who were not employees).
It is particularly unclear how the external note-taker Susan Funnell could have had an interest in receiving the information because Lewisham Council stated the following in its e-mail to me, (after they had finished using her services and defaming me to her):
When Ms Smith read out her presentation, she handed Mr Wilkinson a copy, to avoid verbatim notes of the presentation needing to be taken during the hearing.
(Ms Smith (Elaine Smith) was one of the Defendants’ in this case who I claimed defamed me).
In Clift v Slough Borough Council (1) and Kelleher (2)  EWHC 1550 (QB) at paragraphs [38, 40, 86 & 99], Tugendhat J. held that publications to some of the Council’s own “customer-facing staff” attracted privilege but that publication to
(i) council employees in departments which were unlikely to have any dealings with the Claimant and
(ii) partner organisations were not privileged.
This appears previous approach appears to be in opposition to the approach taken by Judge Eady in the judgment that he handed down in my case.