The case of Austen v University of Wolverhampton (2005), confirms that in order for a claim under the Data Protection Act 1998 ("the Act") to succeed, there must be evidence of damage and court proceedings must be a proportionate action.

The claimant spent a year as an undergraduate at the defendant university. He issued proceedings against the defendant for defamation, breach of confidence, infringement of his right to privacy, intentional infliction of physical or emotional harm and breach of statutory duty under the Act. The claim in respect of intentionally inflicting harm arose out of a meeting between the defendant's data protection officer and an officer of the Department for Work and Pensions (DWP) who was conducting an investigation into the claimant. The claimant learnt of words allegedly said at the meeting by the defendant's officer and contended that those words had exacerbated a pre-existing psychiatric condition.

In the data protection claim, the claimant alleged that:

He had been provided with misinformation by the defendant in so far as it claimed to have destroyed exam scripts written by the claimant; A document supplied to him was unintelligible; The defendant had not disclosed a document which was produced at meeting with the officer from the DWP; and Documents which had been disclosed had been disclosed late. The defendant applied to the Court to strike out the claim. The Court decided that:

The claims for defamation, breach of confidence and infringement of the claimant's right to privacy would fail; The claim under the Act would be struck out in part; and In respect of the claim for intentionally inflicting harm, it could not be decided that the claimant had no real prospects of success. The defendant appealed in respect of the Court's decision in so far as it allowed parts of the claim to proceed. The Court held that:

The claim for intentionally inflicting harm was struck out because the claimant had no realistic prospect of succeeding on this claim as the defendant could not have intended that the comments made at the meeting would be passed on to the claimant nor had the claimant produced any material to support his assertion that he had suffered injury; and The claim under the Act was struck out because there was nothing of any substance in the claimant's allegation as the claimant had no reasonable prospect of establishing he had suffered damage and to allow the claim to proceed would be disproportionate and amount to an abuse of process. If you require further information contact us.

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