“Is there a right to reputation?” Part 2 – Heather Rogers QC

This is the  concluding part of a paper delivered at the JUSTICE/Sweet and Maxwell Human Rights conference on 20 October 2010.  The first part was posted on 26 October 2010.

The Strasbourg developments in relation to Article 8 and reputation have found their way into domestic law. Under the Human Rights Act 1998 (“HRA”) the court is required to have regard to Strasbourg jurisprudence and, as a public authority, must not act in a way that is incompatible with Convention rights. 

Although the HRA did not create a new cause of action to enforce Article 8 directly in English law (other than in claims against a public authority which has acted, or intends to act, in a way which is incompatible with it: see HRA ss7 & 8), it had been acknowledged that Article 8 imposes not only a negative, but also a positive, obligation on the state to respect the individual’s private and family life (See, for example, X and Y v Netherlands (1985) 8 EHRR 235).

While Article 8 may include a positive obligation on a member state to adopt measures to secure respect for private life between individuals, the state has a wide margin of appreciation as to what is required particularly where there is a balance between competing interests or Convention rights (see, for example, Evans v UK (2008) 46 EHRR 34 at [75], [77]; and see [81])  As a result, Article 8’s influence had led to the development in domestic law of a new cause of action to protect privacy: “misuse of private information”  (see generally Duncan & Neill on Defamation (3^rd edn, 2009), chapter 25).

In that context, it has been held that “the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence” (See Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at [17] (Lord Nicholls) and that it is necessary to consider Strasbourg jurisprudence to establish the scope of that domestic cause of action, since those Articles are now “not merely of persuasive or parallel effect” but are “the very content of the domestic tort that the English court has to enforce” (McKennitt v Ash [2008] QB 73 at [11]).

The House of Lords in the British Broadcasting Corporation case [2010] 1 AC 145 appeared to be in no doubt that Article 8 conferred a right to reputation that must be balanced, in an appropriate case, against the rights conferred by Article 10: see Lord Hope at [22] and [28] and Lord Brown at [69]. The Supreme Court considered the point, dealing for the first time with Karako, in Guardian News & Media [2010] 2 WLR 325.  Lord Rodger said:

“Article 8 and reputation

37           On behalf of the press, Mr Robertson QC did not dispute that article 8 rights fall within the scope of “the rights of others” in article 10(2). But, under reference to the judgment of the European Court of Human Rights in Karakó v Hungary (Application No 39311/05) (unreported), given 28 April 2009, he submitted that article 8 does not confer a right to have your reputation protected from being affected by what other people say. So the only article in play in relation to M’s reputation was article 10.

38           In the Karakó case the applicant was a politician. During an election campaign an opponent had said in a flyer that the applicant was in the habit of putting the interests of his electors second. The applicant accused his opponent of criminal libel, but the prosecutor’s office terminated the investigation on the ground that the flyer concerned the applicant as a candidate rather than as a public official and so its publication was not a matter for a public prosecution. Then, acting as a private prosecutor, the applicant submitted an indictment for libel. The district court dismissed the indictment on the ground that the opponent’s statement was a value judgment within the limits of acceptable criticism of a politician. The applicant complained of a violation of his article 8 rights. The European court held that there had been no such violation.

39           As the European court’s judgment in the Karakó case itself shows, in Petrina v Romania (Application No 78060/01) (unreported), given 14 October 2008, the court had confirmed, at para 19, that the right to protection of reputation is a right which, as an element of private life, falls within the scope of article 8 (“le droit à la protection de la réputation est un droit qui relève, en tant qu’élément de la vie privée, de l’article 8 de la Convention”). The court had gone on, at para 29, to survey its previous case law, ending up with the statement in Pfeifer v Austria (2007) 48 EHRR 175, 183, para 35, that “a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity …”.

40           In the Karakó case the European court did not depart from that earlier jurisprudence. Rather, it accepted, at para 23, that some attacks on a person’s reputation could be of such a seriously offensive nature as to have an inevitable direct effect on the victim’s private life. But the court took the view that, on the facts, the applicant had not shown that the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity. That being so, the applicant’s reputation alone was at stake in the context of the expression which was said to have damaged it.

41           Contrary to what Mr Robertson suggested, however, this conclusion did not mean that the court was proceeding on the basis that the applicant’s claim in respect of his reputation did not fall within the scope of article 8. That would have been inconsistent with the court’s previous case law and would also have made nonsense of the reasoning in paras 24-29 of the judgment. In particular, in paras 24 and 25 the court is concerned with the inter-relationship of articles 8 and 10 in the circumstances. The outcome of that discussion (para 26) is that, even though the applicant is founding on article 8, the court must consider whether the Hungarian authorities properly applied the principles inherent in article 10. The court concludes that they did: para 27. Putting the two strands together, the court goes on to find, in para 28, that the applicant’s claim that his reputation as a politician has been harmed is not sustainable under article 8 and that a limitation of his opponent’s right to freedom of expression under article 10 would have been disproportionate. That leads, finally, to the conclusion that there has been no violation of article 8.

42           In short, in the Karakó case the European court was concerned with the application of articles 8 and 10 in a situation where, in the court’s view, the applicant had not shown that the attack on his reputation had so seriously interfered with his private life as to undermine his personal integrity. In fact, the court does not mention any specific effects on the applicant’s private life. In the present case, however, as already set out at para 21 above, M does explain how he anticipates that his private life would be affected if his identity were revealed. Admittedly, he appears at one point to single out the alleged damage to his reputation. Nevertheless, the court is really being invited to consider the impact of publication of his name on his reputation as a member of the community in which he lives and the effect that this would have on his relationship with other members of that community. In that situation the alleged effect on his reputation should be regarded as one of the reasons why, he contends, a report that identified him would seriously affect his private life. On that basis the report would engage article 8(1).”

Thus, the highest court in the land has accepted that reputation is protected by Article 8.  Neither BBC nor GNM was a defamation case.

If Article 8 does include reputation, as well as privacy, then it may well have a significant impact on domestic defamation law.  In Greene v Associated Newspapers Limited [2005] QB 972 at [68], although the Court of Appeal was prepared to assume that reputation was part of Article 8 (The decision was early in the series of Strasbourg decisions on the Article 8/reputation point. See also the discussion of the balance between Articles 8 & 10 in Galloway v Telegraph [2006] EMLR 11 CA at [78-83].), it refused to depart from the well-established principles in relation to the grant of interim injunctions in defamation cases.  What is known as the “rule in Bonnard v Perryman” – [1891] 2 Ch 269 – means that an interim injunction will not generally be granted in a defamation case where the defendant intends to prove the truth of what is to be published, or advance some other substantive defence, unless it can clearly be shown that such defence is bound to fail.

For now – at least – it remains much easier to obtain an interim injunction in a “privacy” case than in a “reputation” (defamation) case. The difference between the two causes of action can be critical, as John Terry found to his cost: Terry (formerly LNS) v Persons Unknown [2010] EMLR 16 (Tugendhat J).  At least, so long as that difference continues to survive in its present form.

This issue is part of the bigger question of whether domestic law needs to re-balance the rival interests, to take account of the elevation of “reputation” from a “legitimate aim” referred to in Article 10(2) to a Convention right, encompassed within Article 8. Following the House of Lords decision in Campbell v MGN Limited [2004] 2 AC 457, in a case where Articles 8 and 10 both require to be considered, the court will follow the approach set out as four clear propositions by Lord Steyn in Re S (A Child) [2005] 1 AC 593 HL at [17]:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

This is a far cry from the days in which it could be said that freedom of speech was a “trump card which always wins” (Lord Hoffmann in R v Central Independent Television [1994] Fam 192 at 202-204).

Domestic defamation law has always had to balance reputation and free speech interests.  Over the last 20 years, there has been a re-balancing of interests to take account of Article 10 and give greater weight to freedom of expression.  Must there now be a further re-balancing the other way and, if so, will it make any real difference?  The answer may well be “yes” and “yes”. This is illustrated by the recent case of Flood v Times Newspapers Limited, in which the newspaper contended that its report about an investigation into a police officer was protected by the “Reynolds/Jameel” defence, which protects responsible publication on matters of public interest. In Reynolds v Times Newspapers [2001] 2 AC 127 – in which that defence was devised – Lord Nicholls set out the essential test and gave illustrative guidelines (at page 205A-C).  He concluded his summary of the relevant principles with these words (at page 205F):

“Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

The judge in the Flood case held that the last sentence (in bold) above could not stand in the light of the HRA, the Strasbourg cases and the approach set out in Re S (see above). The essential test, in a defamation case, as in the misuse of private information cases, now comes down to:-

“…whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to reputation“. see Flood [2009] EWHC 2375 (QB) at [142], [146], [148-149].

The Court of Appeal agreed with the judge:  [2010] EMLR 26 at [21]:-

“In that connection, although the point was not mentioned in Jameel [2007] 1 AC 359, I agree with the Judge (at … paragraph 146) that the last sentence in the passage quoted above .. from Lord Nicholls’s opinion cannot stand following the 1998 Act: it is clear from In re S (A Child) (Identification: Restrictions on Publication) … and ..BBC .. that Articles 8 and 10 have equal weight.”

An application for permission to appeal to the Supreme Court has been lodged in Flood, but it is unlikely (even if permission were to be granted) that this point would the subject of review.

Who gets the benefit of the doubt can be enormously important in freedom of expression cases. This is illustrated vividly by the Naomi Campbell case, in which 5 judges thought that the “journalistic package” was warranted by the public interest, but 4 thought that the publication intruded too far into the claimant’s privacy (principally because of the publication of a photograph taken in the street). The claimant won by 3:2 majority in the House of Lords (there is an outstanding application to the ECtHR by the defendant) (For an account (by me) of the Naomi Campbell litigation, see Cases That Changed Our Lives (Buttterworths LexisNexis 2010), chapter 17).  It will be increasingly important that judges give a proper ambit to the scope of editorial discretion, particularly in relation to how the media decide to communicate matters of public interest to readers/viewers (with the inclusion of photographs, names or other details).  Uncertainty about the outcome of cases increases the chilling effect.

It will also be important in any defamation case to consider, on the facts, whether the nature of any attack on the claimant’s reputation is sufficiently serious to intrude into their private life.  In a privacy case, there must be a “certain level of seriousness” before the matter will fall within Article 8(1).  In R (Wood) v Cmr of Police of the Metropolis ([2010] 1 WLR 123 CA at [22-23]) it was said that this “safeguard” was necessary to ensure that the core right protected by article 8, “however protean”, should not be “read so widely that its claims become unreal and unreasonable” (see also [44]; R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307 HL at [28]; M v Secretary of State for Work and Pensions [2006] 2 AC 91 HL at [83]) . Where a defamation claim falls below that threshold (For an interesting discussion of the “threshold of seriousness” in the definition of “defamatory” see Thornton v Telegraph [2010] EMLR 25 (Tugendhat J) at [20-95], then there should be no question of considering the protection of reputation as a “right” under Article 8.  In such a case, there would be no balancing of competing rights and the protection of reputation would be considered only in relation to Article 10(2).

Before leaving the question of whether or not reputation is a “right”, it is worth noting the approach of the South African courts. “Human dignity” is one of the founding values of the South African Constitution (clause 1).  The Constitution protects dignity (clause 7), privacy (clause 14) and freedom of expression (clause 16). In Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401, the court said:

“[27]       In the context of the actio injuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas.  Dignitas concerns the individual’s own sense of self worth, but included in the concept are a variety of personal rights including, for example, privacy.  In our new constitutional order, no sharp line can be drawn between these injuries to personality rights. The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society.  It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual.  It should also be noted that there is a close link between human dignity and privacy in our constitutional order. [a footnote here in the judgment reads: “See National Coalition .. at para 30: “The present case illustrates how, in particular circumstances, the rights of equality and dignity are closely related, as are the rights of dignity and privacy.”] The right to privacy, entrenched in section 14 of the Constitution, recognises that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion…  This right serves to foster human dignity.  No sharp lines then can be drawn between reputation, dignitas and privacy in giving effect to the value of human dignity in our Constitution. …

[28]         The law of defamation seeks to protect the legitimate interest individuals have in their reputation.  To this end, therefore, it is one of the aspects of our law which supports the protection of the value of human dignity.  When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.

South Africa has devised a defence to protect media reports on matters of public interest: National Media Ltd v Bogoshi [1999] 3 LRC 6178.  In relation to Bogoshi, and defamation law more generally, Sachs J observed in NM and Others v Smith and Others [2007] ZACC 6; 2007 (5) SA 250 (CC):

“Firstly, it seeks to harmonise as much as possible respect for human dignity and freedom of the press, rather than to rank them in terms of precedence.  The emphasis is placed on context, balance and proportionality, and not on formal and arid classifications accompanied by mantras that favour either human dignity or press freedom. The more private the matter, the greater the call for caution on the part of the media, while conversely, the more profound the public interest, the more heavily will it weigh in the scales.  Secondly, by stressing the need for the media to take reasonable steps to verify the information to be published, it introduces objective standards that can be determined in advance by the profession and then evaluated on a case-by-case basis by the courts.  The result is the creation of clearly identifiable and operational norms, and the fostering in the media of a culture of care and responsibility” [footnote here in the judgement referred to evidence which had been given about the standards of reasonable reporting set by the media. Professor Anton Harber testified that since legal control over the media was prone to stifle its freedom of expression unduly, most democracies had opted for as much self-regulation as possible. He had noted (in relation to the facts of the case) that it was general journalistic practice not to disclose the identity of a person with HIV without their consent]

Whether or not reputation is a “right” – or part of private life – or an aspect of human dignity – it will continue to be protected in domestic law, which is likely to look more and more at what is “proportionate”.

Heather Rogers QC is a barrister at Doughty Street Chambers.