Although Guernsey has no standalone privacy law, a number of different statutory and common law provisions exist which provide a basis to protect people’s privacy and confidentiality.

On the statutory front, the main provision remains the data protection regime, in Guernsey contained in the Data Protection (Bailiwick of Guernsey) Law, 2017 (the “DP Law”). Modelled on the General Data Protection Regulation (GDPR), the DP Law protects individuals’ personal data and the processing undertaken in relation to it, and includes the right to access the personal data held as well as to rectification and erasure.

Other legislative regimes which can assist include those provisions of the European Privacy Directive that were adopted by Guernsey in 2004, and those contained in Guernsey’s unique image rights legislation, the Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (the “Image Rights Law”). The Image Rights Law provides statutory protection for people in respect of all indicia of their personality, where the person has registered an image right under Guernsey’s statutory registration system. Subject to exceptions which reflect the “fair use” exemptions seen in the field of trade marks, the Image Rights Law enables a person to object to unfair use of their image (widely defined to include any indicia of personality).

On the common law front, the main bases for protection remain defamation and libel proceedings, and proceedings for misuse of private information. 

In relation to defamation, Guernsey has no statutory provision and relatively little case law. From prior cases, it appears that, in order to succeed in a defamation claim in Guernsey, the plaintiff must establish that:

• a defamatory (rather than merely insulting) statement was made;
• the statement has been communicated to some third party; and
• the statement has caused damage to reputation. 

In the Royal Court case of Ingrouille v Petit, (1961) Plaids de Meubles No 22, it was said that defamation is never actionable without proof of damage in Guernsey. The case also confirmed that guidance could be taken from the standard English practitioners’ text of Gatley. It is worth noting, however, that there is a suggestion in another case that slander is actionable per se. Nonetheless, in that other case the court was not referred to the Ingrouille decision, and the remark was made obiter (Torode v States of Guernsey, Royal Court, 9 November 1993). As matters stand, it is likely that the Royal Court would follow the approach of the Jersey courts (given the similarity between Jersey and Guernsey law’s Norman customary law roots) and apply the English common law position as applied in Gray v Jones (see Corby v Le Main, (1982) JJ 157).

As to misuse of private information, the Guernsey courts have been willing to grant injunctions restraining the use of private information applying established English law principles. Thus, in Dinning v Ozannes, 2003-2004 GLR 491, the Royal Court applied the principles laid down in Campbell v MGN Ltd, [2004] 2 WLR 1232, and concluded that a person in receipt of private information could be restrained from disclosing that private information.

As noted, there are very few reported cases in Guernsey dealing with this topic.

Where the ground of claim is based on breach of the DP Law, various remedies are available to the injured party (as more fully set out in 4. Data Protection), including remedies to provide access to and/or rectification and deletion of data. The DP Law remedies could form the basis of an application for injunction, including on an emergency basis, and/or damages. Similar and further remedies are available under the Privacy Ordinance.

Under the Image Rights Law, aggravated or enhanced damages may be sought where the defendant knew or had reasonable grounds to know that they were infringing registered image rights. This will be done where the court considers it appropriate having regard to the flagrancy of the infringement, the moral prejudice suffered by the plaintiff, any unfair profits derived from the infringement by the defendant and any negative economic consequences for the plaintiff.

In terms of claims for defamation or misuse of private information, where satisfied that the plaintiff’s case is made out, the Guernsey courts may order damages and injunctive relief.

While there is no case law available to confirm the position beyond doubt, it is considered that the Guernsey courts would be willing to grant injunctive relief before publication, where satisfied that this would prevent a threatened wrong from taking place and damages after publication would not be an adequate remedy. Where an injunction is sought ex parte, the court would ordinarily fix an inter partes hearing early to enable the matter to be fully argued.

In the absence of modern case law, there is no guidance on the range of financial awards which will be ordered, save that the Guernsey courts are likely to have regard to decided cases from England Wales – as they do in relation to other matters such as personal injury claims, for example.

In relation to a claim under the DP Law, see 1.1 Privacy Grounds. For now, it is sufficient to note that the limitation period is generally six years.

As to defamation, while there was some debate historically as to whether the limitation period was one year or six years, the position is now addressed by Section 4 of The Law Reform (Tort) (Guernsey) Law, 1979 as six years from the date that the cause of action accrued. 

As to the potential defences to a claim, a defendant can rely on “justification”, which reflects the English law doctrine of the same name. While the defence is based in the common law, it has been given statutory recognition in, for example, Section 10(4) of the Rehabilitation of Offenders (Bailiwick of Guernsey) Law, 2002.

Additionally, a defendant may be able to rely on a defence of privilege in relation to words uttered during parliamentary proceedings in the States of Deliberation. Thus, under Section 20A of the Reform (Guernsey) Law, 1948, absolute privilege attaches to such statements and, similarly, protection is provided by Section 20D for persons publishing a “fair and accurate report” of parliamentary proceedings, unless the publication is made with malice.

More broadly, Guernsey’s Human Rights (Bailiwick of Guernsey) Law, 2002 and its subsidiary legislation enshrine the protections contained in Article 10 of the ECHR in respect of freedom of expression.

As to remedies under the DP Law, these will primarily be civil in nature, save that the DP Law does make provision for certain matters to constitute a criminal offence. Civil remedies under the DP Law fall to be dealt with under Guernsey’s standard civil procedure rules, as contained in the Royal Court Civil Rules, 2007. These rules will also apply to any defamation claim or proceedings for misuse of private information.

There is scope for proceedings to be heard in private rather than open court or for anonymisation measures to be put in place. Certain types of cases are routinely heard in private, including children or family cases, private trust administration proceedings, where public interest issues arise or (perhaps) where confidential trade secrets are in dispute.

In order to bring proceedings in Guernsey, ordinarily the court must be satisfied that an actionable tort has occurred in Guernsey (publication and damage to reputation). The rules enable service on defendants out of the jurisdiction provided a jurisdictional nexus is demonstrated. 

Costs are generally recoverable by the parties, with the Guernsey courts generally applying English principles. As such, costs will generally follow the event, albeit there is scope for issue-based costs orders. Costs will either be on the standard party/party basis or on the indemnity principle.

It may be the case that privacy restrictions are imposed where necessary to protect a regulatory purpose, but this would be done on a case-by-case basis.

As noted previously, Guernsey does not have any statutory defamation law. Instead, defamation cases are based on customary law principles as updated to reflect English common law and practice. As such, because the position in England is now comprehensively provided for via the modern Defamation Act 2013, it cannot simply be assumed that the specific statutory provisions contained in that Act would necessarily be transposed across to Guernsey either as is or without modification. Nonetheless, it is likely that the Guernsey courts would pay considerable heed to English jurisprudence.

In this regard, as already noted, Guernsey would first consider Jersey case law as a source of guidance, where deemed appropriate. It is noted that Jersey has passed the Defamation (Jersey) Law 2009, which follows similar principles to the English common law prior to the 2013 Act, and as such is considered more likely to be authoritative in Guernsey, given the common Norman customary law roots shared by Guernsey and Jersey.

As to the grounds for pursuing a defamation claim in Guernsey, see 1.1 Privacy Grounds.

See 1.2 Privacy Remedies.

As defamation falls under tort, the Law Reform (Tort) (Guernsey) Law, 1979 applies and confirms that a six-year period is applicable. The main defence is justification or veritas.

As already noted, the Guernsey courts have long operated on the principle of open justice, only permitting private, “in camera” hearings and anonymised reporting on judgments where a public hearing itself would frustrate the interests of justice. There are several well-recognised situations where proceedings will be heard in private, including matters involving children or the administration of trusts.

In other proceedings, recent guidance from the Court of Appeal of Guernsey has brought the Guernsey court practice on privacy orders more in line with that applicable in the UK. In Fuller and Others v Guernsey Financial Services Commission, [2024] GCA 08, the Court of Appeal stated as follows.

“It is a central principle of Guernsey law that the courts should sit in public so that the proceedings can be observed by members of the public and reported on by the media. Transparency improves the quality of justice, enhances public understanding of the process, and bolsters public confidence in the justice system in the Bailiwick… The agreed test for determining whether this appeal hearing should take place in private is one of strict necessity in the interests of justice; see In the Matter of the L Trusts [2020] GCA 061. There is no question of balance. This is a binary question. Either a hearing in private is necessary, or it is not.”

In Alpha Development Limited v Barclays Wealth Trustees (Guernsey) Limited, Judgment 11/2015, after reviewing authorities from Guernsey, England and the Isle of Man, the court stated the following.

“22. … (a) There is a general presumption that all aspects of a case are to be held in public. (b) In exceptional circumstances, that presumption can be rebutted where it can be demonstrated that justice would be frustrated otherwise. (c) The test to apply is one of strict necessity. (d) The burden of establishing that the test applies lies on the applicant. (e) The Court expects the applicant to adduce clear and cogent evidence in support of such an application. (f) If that test applies, derogating from the general presumption follows as a matter of principle. Equally, if the test does not apply, the application must be refused. There is no question of exercising a discretion. (g) Any limitations on the ordinary rule of open justice granted by the Court will, therefore, be the minimum required to preserve the confidentiality of the information involved so as to secure the proper administration of justice.”

Where a privacy order is sought, and unless the matter falls within one of the recognised exceptions, the Fuller case now requires notice to be given to the local media that a privacy order is being sought.

As stated previously, in order to bring proceedings in Guernsey, ordinarily the court must be satisfied that an actionable tort has occurred in Guernsey (publication and damage to reputation). The rules enable service on defendants out of the jurisdiction provided a jurisdictional nexus is demonstrated. The Guernsey courts are likely to follow the English courts in determining whether or not a nexus is shown, so that it is likely a defamatory statement will have been considered published at the place where it is read or heard. In relation to material available in Guernsey on the internet, this is likely to constitute publication in Guernsey.

In general, costs are recoverable in civil proceedings in Guernsey. The usual rule is that a successful party will be awarded their legal costs, although this is not automatic and the court can make issue-based costs orders where appropriate or indeed deprive a party of costs if it considers that their conduct has been unacceptable.

Standard recoverable costs will enable the successful party to recoup all costs which are reasonably incurred up to the maximum recoverable rate fixed for recovery, albeit there is scope for indemnity costs being ordered. Generally, this reflects where a party has behaved unreasonably or improperly. Costs of foreign lawyers are not generally recoverable save in limited cases.

Owing to the absence of reported decisions, there are no additional comments concerning this topic.

Statutory protection from harassment is laid down in The Protection from Harassment (Bailiwick of Guernsey) Law, 2005 (the “Harassment Law”.)

The Harassment Law provides for both criminal and civil harassment proceedings. In simple terms, a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other person.

Harassment orders are often made in domestic proceedings. While there is limited case law on harassment orders in Guernsey, due to the Harassment Law’s similarity to UK harassment legislation, the Guernsey courts are likely to have regard to decisions of the courts in England and Wales on these matters.

Relatedly, Guernsey has similar provisions to the UK in relation to offensive, indecent, obscene or menacing messages sent though the telecoms network, pursuant to Section 16 of the Telecommunications (Bailiwick of Guernsey) Law, 2001.

There may also be a ground of complaint under the DP Law.

As noted, given the similarities between Guernsey’s Harassment Law and UK legislation, it is likely that the Guernsey courts will be guided by decisions of the UK courts in relation to the remedies available for harassment and the circumstances in which damages or an injunction may be ordered. In the domestic proceedings setting, the courts can make non-molestation and ouster orders. In the broader civil context, the Harassment Law makes provision for a claim for damages to be awarded for (among other things) any anxiety caused by the harassment.

There are no reported decisions relating to damages orders in harassment cases in Guernsey; again, it is expected that the courts would be guided by damages orders made in England and Wales.

Harassment can give rise to both criminal and civil proceedings. In relation to civil proceedings, the deadline for commencing action is six years from the date the right of action accrued. There is no statute of limitation for criminal acts in Guernsey, and Guernsey has by and large accepted English criminal common law principles.

In order to establish harassment, a course of conduct is required. In practice, this requires conduct on at least two occasions. Again, the Guernsey courts will draw guidance on this from the decisions of the courts in England and Wales.

A criminal case would be investigated by the Guernsey Police, and any prosecution would be undertaken by Guernsey’s Law Officers and require proof beyond reasonable doubt.

A civil case would likely be brought by the individual who suffered the harassment and be determined on the balance of probabilities.

It is possible that harassment proceedings would be determined in private proceedings, if the case is of a certain category or the particular circumstances of the case so require.

As noted previously, civil claims are brought under the Royal Court Civil Rules, 2007. If the matter is properly justiciable before the Guernsey courts, the courts can make orders for service out of the jurisdiction on the defendant, where necessary.

In principle, successful claimants or defendants can recover legal costs, on the same bases as stated in 2. Defamation.

The DP Law is the key legislation regulating the protection of data rights in the Bailiwick of Guernsey. It mirrors the EU GDPR and is primarily a regulatory regime, outlining the key requirements on data controllers and processors in relation to the handling of personal data. 

Data controllers are under a statutory duty to not breach the requirements of the DP Law. Under Section 79 of the DP Law, a breach claim will arise where personal data is processed in a manner which breaches the data protection principles laid down in the DP Law and causes loss. 

In a claim under that Section, Subsection (3) confirms that a court in which an action is brought may grant any order, relief and remedy that the court may grant in the case of the tort of breach of statutory duty, including, for the avoidance of doubt, in the Royal Court:

• an award of damages (including punitive or exemplary damages) in respect of the breach of duty;
• an injunction or interim injunction to restrain any actual or anticipated breach of duty; and
• a declaration that the controller or processor has committed a breach of duty, or that a particular act, omission or course of conduct on the part of the controller or processor would result in a breach of duty.

There have been hardly any cases dealing with this issue. Again, it is expected that the Guernsey courts will have regard to cases decided by the English courts.

The general period for limitation is six years, save as expressly provided otherwise.

In terms of exemptions from liabilities, pursuant to Section 80 of the DP Law, the following should be noted.

“80. (1) A defendant in any action is exempt from liability for breach of duty if the defendant proves that the defendant is not in any way responsible for the damage that is the subject of the action. (2) A processor is exempt from liability for damages under any action unless the processor (a) has breached a provision of this Law specifically imposing a duty on processors, or (b) has acted outside or contrary to lawful instructions given by the controller. (3) For the avoidance of doubt, (a) where both a controller and a processor, or more than one controller or one processor, are involved in the same processing that caused the damage that is the subject of the action, each controller and each processor so involved is jointly and severally liable for the damage concerned, and (b) where a controller or a processor (“A”) has, in accordance with paragraph (a), paid full compensation for any damage, A is entitled to reimbursement from each of the other controllers and processors (“B”) involved in that processing, for that part of the compensation corresponding to the responsibility of B for the damage concerned, subject to subsections (1) and (2).”

In terms of exemptions from compliance with data protection rights more broadly, these are provided for in Schedule 8, which contains broadly the same exemptions as are available in England and Wales: namely, confidential references given by the controller, judicial appointments and honours, Crown appointments, disclosure to relevant bodies to protect individuals from serious harm, disclosure required by law and examination data.

In addition, the following data sets are exempted: marking data and items covered by legal privilege.

Further, on the grounds of prejudice, the following are exempted: armed forces, management forecasting or planning, financial service data, negotiations, self-incrimination, judicial independence and judicial proceedings, public information, historic or scientific information, tax and crime information, prejudice to international obligations, protective functions and regulatory purposes.

The DP Law also provides for other exemptions for specific aspects including the exemption of certain trusts information, court-directed exemptions, serious harm to data subjects or other individuals, and requests by officers of the court.

Finally, exemptions apply in the public interest: journalism, art, literature and academia, public security, etc.

In terms of possible defences, it is open to a defendant to argue that:

• the processing in question had a lawful basis under the DP Law;
• all data protection principles were followed (Section 6);
• the processing fell within the domestic/household exception or arose through a third-party security breach; and
• in any event, there was an absence of harm.

Please see 2. Defamation, which applies equally here.

Please see 2. Defamation, which applies equally here.

Generally speaking, perhaps because Guernsey is such a relatively small place, broadcasters are generally very mindful of the need to maintain high standards. The main news providers are:

• the Guernsey Press;
• Bailiwick Express;
• Island FM;
• BBC Radio Guernsey;
• BBC Channel News; and
• ITV Channel Television.

The Guernsey Press is the only printed newspaper – its publisher has subscribed to the Editor’s Code of Practice issued by the Independent Press Standards Organisation (IPSO) in the UK. The fact that only two decisions of IPSO under the Code have been published indicates that the Code is generally adhered to by the Press.

The other main online news source is Bailiwick Express – this is registered as a member of Impress, which subscribes to a similar Standards Code, including:

• reasonable steps to ensure accuracy;
• drawing a clear distinction between statements of fact and opinion;
• a duty to not misrepresent or distort the facts even if the publication adopts a partisan stance; and
• an obligation to correct any significant inaccuracy with prominence equal to the original article at the earliest opportunity.

As to broadcasters, BBC Channel Islands and BBC Radio Guernsey operate under the core BBC Code of Conduct, Island FM operates under Environmental, Social & Governance Policies – Island FM and ITV Channel Television operates under ITV’s Code of Conduct.

As noted previously, while there is no independent regulatory code of conduct for the media in Guernsey, all media outlets have voluntarily signed up to UK codes or similar.

Broadcasting in Guernsey is regulated by Ofcom under the Broadcasting (Guernsey) Order 2003, which extended certain provisions under the Broadcasting Act 1996 to Guernsey.

The Guernsey Press have their own direct complaints process, but should a complaint made thereunder not be resolved to the complainant’s satisfaction it can be referred to IPSO. The sanctions are the same as in the UK.

Again, the Bailiwick Express has its own direct complaints process, but with scope for this being referred to Impress if the complainant is not satisfied with the final response. Again, the sanctions are the same as in the UK.

Ofcom may take action under the relevant code if it considers that there has been a breach of the relevant standards; as before, the sanctions are the same as in the UK.

There are no specific mechanisms of this nature.

Guernsey has no provision in relation to SLAPPs.

There is no specific legislation to prevent the enforcement of judgments in media cases from other jurisdictions. Guernsey does recognise and enforce foreign judgments both at statute (from a limited range of jurisdictions) and at common law, but not specific to media judgments.