This is the presentation given by Professor Gavin Phillipson introducing the Westminster Policy Forum “Libel & privacy law ‐ challenges for reform” on 15 June 2010. It is reproduced with permission and thanks.
I am delighted to have the opportunity to speak today and mean to use this brief paper to highlight what I think are the key issues now in relation to both libel and privacy law. I will take privacy first then and make five brief points.
First, it’s now clear that we have in effect a new cause of action bred from a fusion of the old action for breach of confidence with principles deriving from Art 8 of the ECHR protecting private life as expounded by the European Court at Strasbourg: the tort of misuse of private information, based on an unjustifiable violation of a person’s reasonable expectation of privacy. We know from cases such as Mosley, McKennit v Ash and Naomi Campell that it covers the publication of information that is obviously private, such as that pertaining to health, medical treatment, sexual life, private finance and family life. Publishing photographs taken of a person on private property is actionable. Where the photos are of someone in a public or semi-public place, they can still be actionable – as in Campbell, in which photos of her in the street were found to violate her reasonable expectation of privacy, because they vividly revealed the fact that she had been receiving treatment at Narcotics Anonymous – a private fact as the House of Lords found.
But here lies my second point and a key one: how much further should the law go? I think we all know by now that the Strasbourg Court appears to take the view that in general a publication of a photograph without consent engages Art 8 and requires justification, even where that photo is taken in a public place and does not reveal any intimate or sensitive information – as in Von Hannover – with a narrow exception for photos showing a person on official business or at press conferences, red carpet events and so on. The English courts have been grappling with how far to take this. They have recognised, rightly in my view, that full acceptance of Strasbourg’s approach – so that publication of a one-off anodyne photograph of a person simply walking down the street was actionable – would take us a decisive conceptual step further away from privacy rights as generally understood and into the creation of image rights. Baroness Hale and others of course rejected such a notion obiter in Campbell and the High Court in the JK Rowling (Murray v Express Newspapers) case struck out JK Rowling’s claim on behalf of her young son after she was photographed in the street in Edinburgh, pushing him in his pram. The Court of Appeal reinstated the claim in a judgment that is not very clear: the best interpretation would appear to be that children, though not adults, have that kind of protection. A bad interpretation would be that adults may do so, but that it all depends upon the facts. I would respectfully suggest that such an approach provides woefully inadequate guidance in an area in which predictability is not only desirable but necessary to protect press freedom. This is an area in which English courts need to be prepared to show the kind of resistance to the Strasbourg jurisprudence that they did recently in Horncastle. Photos even in public places may violate ones reasonable expectation of privacy but only where they reveal some important or intimate private fact or amount to harassment.
Third, the method of balancing Arts 8 with the Article 10 right to freedom of expression is now fairly well established. The rights now have presumptively equal status; neither may be enforced in such a way as to disproportionately damage the other, and which claim wins out in a given case depends upon an intense focus upon how far the values underlying the right are really at stake in the particular circumstances. In practice this means that when publishing stories concerning the private life of an individual without consent, the newspaper cannot simply rely on the general liberty of the press: it must establish a specific public interest in the story – whether, as the Strasbourg has put it, the story contributes to a debate of general interest. Strasbourg and most English judges are clear that gossip journalism and tittle-tattle generally won’t.
Fourth, however, there is clearly some division amongst the English judiciary on this point – on what constitutes the public interest. For example, in the John Terry case there seemed to be some attempt to push the law back to the notion, established in Flitcroft and Theakston but fairly heavily disapproved by the House of Lords and Court of Appeal since, that there is a public interest in learning about the activities of public figures that some may consider immoral, such as adultery or S/M activities with prostitutes. In Mosley, this idea was firmly rejected; indeed it was maintained that even reporting illegal conduct may not be in the public interest where it is relatively trivial – such as smoking a joint or engaging in the infliction of technical actual bodily harm as in S/M activities. In Terry, however, Justice Tugenhadt appeared to indicate that the reportage of anti-social activity, such as adultery, might be in the public interest, since sometimes public debate on lawful but immoral activity can lead to its being subsequently criminalised. The judge seemed to be flying a kite here, since there was no suggestion that adultery – the subject matter of the particular case – may ever be re-criminalised. Some newspaper editors such as Paul Dacre have publicly claimed the right to report private but immoral conduct, because of a claimed benefit in public shaming. Many would regard the notion of the upholding of moral standards by tabloid newspaper editors as rather laughable. To me, certainly, the notion is nearly always the thinnest of excuses for the real agenda – which Paul Dacre for one has publicly admitted as a factor – that scandal is necessary to sell newspapers. Tabloid newspaper editors are not good judges of where the balance between personal privacy and the legitimate public interest should lie, because most editors are fiercely one-sided on the issue of privacy and have a clear commercial imperative to resist restrictions on their freedom to publish smut and scandal. Thus Tugendadnt’s suggestion in the Terry case that the test on this point should be not whether a publication is actually in the public interest but whether a newspaper editor reasonably thought it was – to bring the common law into line with the wording of the Data Protection Act on this point – should be firmly rejected. Rather, the DPA provisions should be read compatibly with the Convention, under the HRA.
Fifthly and finally on privacy, a word on Max Mosley’s application to Strasbourg and his argument for prior notification. The case is proceeding further than many expected. In my view, a requirement that the press give the potential claimant prior notice of a story invasive of their privacy is right in principle but only for those cases in which the story is going to reveal a plainly intimate or sensitive fact about a person such that only an injunction can be a satisfactory remedy (so, not for example in the JK Rowling case). In such a case, where once private facts have become known to the public damages cannot repair the harm, it is right that a judge should be able to decide whether an injunction is the right remedy, rather than a newspaper editor being able, as at present, deliberately deny the claimant the chance to apply for such a remedy. I would add two important caveats though. First, the rule should not be, in my view, be backed by criminal sanctions; second, it would be preferable if the issue could be decided by the English courts, through, for example, developing a remedy in exemplary damages for non-notification, rather than by Strasbourg.
To turn to libel: the campaign for the reform of the law of libel has been a wonderful thing in forcing this issue onto the public debate. It is, however, certainly not the case that English libel law had become more draconian in recent years. On the contrary as Professor Mullis and others have pointed out, all the major changes in recent years have been in favour of the media: the development of Reynolds privilege from 1999 and its strengthening recently in Jameel; the introduction of the offer of amends procedure, and the ability of the Court of Appeal to control the award of damages by juries. What I think led to this campaign was developments elsewhere: the introduction of conditional fee awards, which allowed more people to sue; the rise of the internet, which hugely increased the scope for defamatory allegations to be read across the world, thus increasing the choice of possible fora for legal action; the practice of newspapers and NGOs maintaining vast online archives combined with the effect of English law’s archaic multiple publication rule, meant that such bodies faced liability for defamation that was essentially indefinite in time; (this is because English law treats each time an article is download and read as a fresh publication, giving rise to fresh liability, meaning that in effect, there is no limitation period for libel). English law has not recently become more claimant-friendly, rather the reverse; but the rise of the internet and the globalisation of legal services has recently extended the practical effect of English libel law as a potential restriction on free speech.
This in turn means that we should be very cautious before accepting that sweeping changes to the law of libel are needed. The Simon Singh case – one of the catalysts for the campaign – is illustrative. I am delighted that Simon won his appeal. But whether, as some claimed, his victor proved that more reform of the law is needed I am rather doubtful. One might well argue that it showed that the defence of fair comment in the substantive law of libel was sound in that it eventually produced the right result; but that reform is needed to the way that costs are charged and awarded.
Some of the demands of the campaign for libel reform have been sensible, realistic and balanced – I am glad to see that many of these appear in Lord Lester’s Bill. These include reform of the multiple publication rule, strengthening of the reportage exception to the repetition rule, clarification of the public interest and fair comment defences, the extension of privilege, particularly to report Parliament, which the Trafigura case arguably showed to be inadequate, and a requirement that corporate bodies must show financial damage. Other demands and claims of the campaign I have to say were at times excessive, inaccurate and one-sided. There were calls to reverse the burden of proof for example, which could have placed an intolerable burden on those defamed to prove a negative in order to clear their names. I am glad that no such proposal appears in the Lester bill. There were also calls for the current Reynolds defence of responsible publication on a matter of public interest to be replaced with a Sullivan-style defence, as found in US law. On this issue, the contrast is clear. The English approach – like that of the Strasbourg – is that value or public importance of the story in question can never on its own guarantee Article 10 protection: journalists must make reasonable attempts in the circumstances to verify the allegations they are making – though what this means in particular circumstances will vary considerably. In contrast, in the US, if you’re deemed a ‘public figure’ – a very broad category – the media pretty much has carte blanche to publish what they want about you: public figures can’t sue for libel unless they can show that the newspaper was deliberately or recklessly telling lies – nearly always impossible. The idea of removing from the British media a requirement that, before defaming such people they should check their facts, strikes me as a pretty frightening prospect; moreover, there sometimes seems to be an assumption that that the US approach is the norm in democracies. It’s not. It’s the exception.
Which leads on neatly to the broader fact that English libel law is not out of step with most other countries. The libel campaign said so many times that English libel law was the most draconian or claimant friendly in the Western world that it became a kind of accepted truth just through repetition. It might even be said, to quote Simon Singh in another context, that this view was often blithely promoted in the media, without a jot of evidence. But it must be said loud and clear: it simply isn’t true. English libel law strikes broadly the same balance between reputation and speech rights as the law in Australia, Germany, Canada and South Africa; in fact Canadian law just last year introduced a defence of public interest based on the English Reynolds test, rejecting the Sullivan approach. The English law approach is the norm – in fact it’s considerably more liberal than in some Western European countries, such as Austria or France.
Finally, one matter that I think does need addressing is the fact that the Strasbourg court, which up until quite recently has been a force for liberalising English libel law, has recently and quite dangerously muddied the waters. What we might call the classic or traditional Strasbourg approach has stressed that exceptions to freedom of expression must be interpreted narrowly; therefore that when engaging in comment on matters of serious public concern, freedom of expression has clear presumptive priority over reputation, which is an exception to it, and not a primary right within the Convention. The change came about five years ago, in the Strasbourg’s sudden announcement in the Radio France case that the right to protection of one’s reputation is of course one of the rights guaranteed by Article 8 of the Convention, as one element of the right to respect for private life. The recognition of reputation as an aspect of Article 8 even where the allegations concern the discharge of public duties – repeated in several cases in 2005 and 2006 – is potentially of great significance. Rather than starting with the clear presumptive priority of Article 10 over a competing, non-Convention interest in reputation, with the burden being upon the state to justify interference with expression by reference to the familiar tests of necessity and proportionality, the approach becomes one of “fair balance” between the two competing rights. Moreover, given the well established notion of positive obligations in the Court’s case law whereby the state can have obligations to intervene in private relations to protect the right to private life, this means that a state may be not only permitted but actually required to ensure strong remedies for defamatory speech in order to fulfil its obligations under Article 8 – even where the allegations relate to the discharge of public functions, not private life.
However, there has been something of a retreat from this principle in recent cases – I have counted 13 cases in the last few years – in which the court has dealt with defamation cases without even mentioning Article 8. Moreover, in Karako v Hungary, the court appeared to signal a clear retreat from this stance, doubting whether Art 8 is always engaged in defamation cases and rejecting the notion that the right to reputation is an independent right protected by Article 8 of the Convention which the State has a positive obligation to protect. However, just as Strasbourg may be trying to row back from its previous controversial finding that Article 8 is engaged even in cases of political defamation, the finding that it is has been clearly accepted by the UK’s Supreme Court in its 2010 decision in Guardian News and HM Treasury on anonymity in relation to freezing orders under anti-terrorism powers. Thus the UK courts have started to speak of finding a fair balance between the two rights, as in privacy cases, rather than the previous position in which any doubt must be resolved in favour of freedom of expression (this recently led Tugenhadt J in Flood v Times specifically to state that the previous position no longer stood); in turn this has led to doubt as to whether the rule in Bonnard v Perryman, prohibiting injunctions in defamation cases, can survive much longer. In my opinion, while there will be cases in which attacks on reputation also engage the right to private life – as when false allegations of adultery are made, for example, there should be cases in which because the allegations relate to the discharge of public functions for example, Article 8 should be treated as either not be in play at all or perhaps only nominally engaged but of no real weight because personal privacy has not been undermined. It is perhaps unfortunate that the UK Supreme Court has seemingly accepted the general applicability of Article 8 in defamation cases just as Strasbourg may be rowing back from that position. In my opinion, a useful amendment to the Lester Bill would be one in which Parliament indicated that there is a a class of cases in which the allegations plainly relate to the conduct of public, rather than private life, and establish a clear presumptive priority for free speech in such cases.
Gavin Phillipson is Professor of Law at Durham University.