The influence of Article 8 of the European Convention on Human Rights on the law of breach of confidence and the development of a domestic tort of “misuse of private information” has been well documented. By contrast, the influence of Article 8 upon the law of defamation has been much less pronounced. Just before the Christmas break, however, the Court of Appeal handed down judgment in Clift v Slough Borough Council ( EWCA Civ 1484). In Clift the Court of Appeal grappled with the issue of how, if at all, the Human Rights Act 1998 (“HRA”) has affected the availability of the defence of qualified privilege to public authorities in defamation cases.
The Court concluded that the HRA has had a profound affect. Since a public authority is required (by virtue of section 6 of the HRA) to act compatibly with Convention rights, and since the right to reputation is protected by Article 8, any publication that interferes with that right must be justified as necessary and proportionate to a legitimate aim under Article 8(2). Furthermore, there can and will be no defence of qualified privilege where a public authority has acted incompatibly with its public duties under the Convention, – in this case, where the interference with an individual’s Article 8 rights could not be justified under Article 8(2).
In ruling in favour of an approach that accords primacy to a public authority’s HRA obligations, the Court has not only laid down an important marker about the role of Article 8 in future libel cases involving public authority defendants and the defence of qualified privilege, but also in relation to the availability of other defences to such defendants. The case also raises interesting questions about the future development of the law as between private individuals given the potential horizontal effect of section 6 of the HRA. The decision is therefore of interest to libel lawyers, administrative law practitioners and public authorities alike.
The Claimant, Jane Clift, had brought a libel claim against Slough Borough Council (“the Council”) and its Head of Public Protection arising out of the publication of the Council’s Violent Persons Register (“VPR”) which named her as a person who posed a “medium risk” of violence following an incident described as “threatening behaviour on several occasions”. Although no incident of violence had ever taken place, Ms Clift had made a number of comments about a particular employee of the Council in communications with it that were treated as constituting credible threats of violence. As a result it was decided to add Ms Clift’s name to the VPR.
An email headed “Violent Persons Register – Ms Jane Clift” and attaching the VPR (“the Email”), was sent by the Head of Public Protection to 54 individuals who were officers or employees of the Council with a further 12 hard copies to be circulated to 12 Council Community Wardens, bringing the total number of publishees of the email to 66. Copies of the VPR were also sent to several external “Partner Organisations that provide a service on [the Council’s behalf]” including organisations providing refuse collection and road sweeping services, maintenance on Council-owned properties and estates, the NHS Primary Care Trust and about 50 business members of the Community Safety Partnership. Evidence was given at the trial that the VPR would have been circulated to not more than 150 people.
The Council relied on defences of justification and qualified privilege to which Ms Clift responded with a plea of malice. At trial, the jury rejected both the defence of justification and the plea of malice. In relation to qualified privilege, Tugendhat J ruled ( EWHC 1550 (QB)), in relation to publication of both the email and the VPR that publication to employees of the Council who were “customer facing staff” that may come in to contact with Ms Clift was protected, but that publication to employees in other council departments or to any external “partner organisations”, was not, since it was not reasonable to conclude that any risk existed to those individuals. Publication to those employees and organisations was not proportionate or fair.
The effect of these rulings was that the jury were directed that damages were to be assessed on the basis that the VPR was circulated to 150 people and the email to 30 people (the publication to the other 36 being protected by qualified privilege). The jury awarded Ms Clift damages of £12,000. The Council appealed.
At the heart of the appeal was a tension between two well established legal principles. On the one hand there was the conventional common law concept of qualified privilege as a public policy defence designed to facilitate the uninhibited exchange of (non-malicious) communications for the common convenience and welfare of society. On the other there is the duty of public authorities to act compatibly with individuals’ Convention rights – in this case the Article 8 right to respect for private and family life, which the Court of Human Rights and Supreme Court have recognised as including a degree of protection for an individual’s reputation (see In re Guardian News and Media Ltd  UKSC 1).
In Kearns v General Council of the Bar ( 1 WLR 1357), the Bar Council had published a seriously defamatory statement circulated to all heads of chambers, senior clerks and practice managers in England and Wales. In upholding the defence of qualified privilege, Simon Brown LJ said that it did not matter whether one characterised the Bar Council as owing a duty to the recipients of the communications or whether the situation was characterised as one where the parties shared a common interest in maintaining professional standards. Instead, what mattered was that
“the relationship between them is an established one which plainly requires the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions” .
The Council in Clift contended that it had an analogous “established” relationship with the recipients of the email and the VPR and that all communications with those recipients that were relevant to the discharge of its functions should therefore be protected by qualified privilege.
In Wood v Chief Constable of the West Midlands Police ( EMLR 20) a police officer responsible for investigating a series of car thefts had informed members of the insurance industry that the claimant’s business partner was guilty of the thefts. The business partner was subsequently acquitted of all criminal charges. The claimant then sued the police for libel, contending that the communications meant and were understood to mean that he had aided and abetted the commission of serious criminal offences. The defence of qualified privilege was struck out by the court on the basis that there was no lawful justification, let alone any duty, for the defendant to disclose the information about the claimant, the Court of Appeal holding that the performance of a public duty was relevant to the question of whether or not the defendant had a sufficient duty or interest to publish the defamatory material.
Ms Clift contended that the Council, as a public authority, should only be entitled to rely on the defence of qualified privilege if it was consistent with its public law duties. Its public law duties required it to publish information only to the extent necessary for the performance of those duties and in accordance with its obligations under the HRA. Since the information published was damaging to Ms Clift’s reputation, her Article 8 rights were engaged and in consequence the Council were under a duty not to interfere with her Article 8(1) rights unless this could be justified under Article 8(2) as necessary and proportionate to a legitimate aim. Whilst it was accepted for Ms Clift that protection of Council employees and employees of partner organisations was a “legitimate aim” sufficiently important to justify interference with her Article 8 rights and that the inclusion of her name on the VPR was rationally connected to that legitimate aim, the important question, was whether or not publication to those who were not likely to be directly approached by Ms Clift was proportionate. Applying this analysis, the Judge’s rulings on qualified privilege were correct.
The Court of Appeal therefore had to decide whether proof of an established, existing relationship was of itself sufficient to justify the free flow of information between the parties to the relationship (as per Kearns) or whether the absence of a public law duty to communicate deprived the public authority defendant of its defence of qualified privilege (as per Wood).
The answer to this question, said Ward LJ (with whom Thomas and Richards LJJ agreed), was located in the underlying reason for the defence, which is “rooted in public policy”. The nub of the court’s reasoning on this first question can be found at :
“The private interest in one’s reputation is to be preferred to the public convenience of unfettered communication where there is no duty to communicate at all.”
It was held that Wood was binding on the Court. Kearns was distinguished on the basis that the defendant Bar Council was not a public authority and as such was not subject to any public law duties. In the absence of a positive duty to communicate the defamatory material, the council could not simply point to the fact that it had an established relationship with all of the recipients and assert that this in itself meant that the publication was privileged. As a public authority the Council was bound to act compatibly with Convention rights for it would be unlawful not to do so.
The right to reputation falls within the scope of Article 8 and was engaged, and the Council were accordingly bound to respect it unless its interference with it (namely the publication of the Email and VPR) could be justified under Article 8(2). As to the Council’s argument that this would create immense practical difficulties for local authority officials required to make an individual assessment of the propriety of each and every proposed publication, Ward LJ concluded:
“Ill-considered and indiscriminate disclosure is bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly have the need to know or those reasonably thought to be at risk can outweigh the substantial inference with the right to protect reputations. In my judgment the judge’s ruling on proportionality is beyond challenge. To publish as widely as the Council did was to breach Ms Clift’s Article 8 rights. 
…If the Council were in breach of Article 8, it would be unlawful to publish the information. If it was unlawful to publish the information, then the Council’s duty was not to publish. If the duty was not to publish, the Council could no longer claim to be under a duty to impart the information to those who did not need to know it. Not being under a duty to publish, the foundation of the claim to qualified privilege falls away. ”
The question was therefore whether or not the Council had a duty to publish the material as widely as it had done. Answering this question required consideration of the proportionality of the Council’s actions. The Court of Appeal agreed with the judge that the decision to publish the material about the claimant as widely as the Council had done was disproportionate and dismissed the appeal.
The remainder of the Council’s arguments were swiftly disposed of. The Court of Appeal held that the Judge had not failed to take into account the Article 8 rights of the publishees since any risk to them was not significant enough to engage Article 8. Nor did Ms Clift’s case invoke Convention rights to create a new ‘defence’ (an approach that had been rejected by the House of Lords in Van Colle v Chief Constable of Hertfordshire Police ( UKHL 50) in the context of common law negligence claims against the police). The argument that Ms Clift should have been confined to bringing a freestanding claim under the HRA for breach of her Convention rights was also rejected on the basis that damages under the HRA are less generous than damages in defamation claims and in any event the effect of section 6 of the HRA upon the Court as a public authority required to act compatibly with the Convention, was to require the Court to tackle the issue head on.
An number of points arise out of the decision in Clift. First, it is clear that a local authority’s HRA obligations condition the circumstances in which the authority will be able to invoke the defence of qualified privilege in a defamation claim: the defence will not be available if the claimant’s Convention rights were engaged and the decision to publish the defamatory material constituted a disproportionate infringement of those rights. Public authorities must therefore think even more carefully before circulating potentially defamatory material amongst “interested” parties.
Second, does it mean that all public authority defences to defamation claims must pass the proportionality test in order to succeed?
Third, does this approach extend to affect the availability to a public authority of defences to other causes of action where a claimant’s Convention rights are engaged. If not, why not?
Fourth and finally, the decision gives rise to important questions about the impact of Convention rights in claims between private individuals – the so-called “horizontal effect” issue. In relation to misuse of private information, Lord Nicholls in Campbell v MGN Ltd ( UKHL 22) stated that:
“The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” .
The decision in Clift brings the issue of whether Article 8 will begin to infuse the defence of qualified privileged in cases brought by one private party against another in to sharp focus. This raises the spectre of proportionality decisions being taken on the newsroom floor. Whilst journalists and editors already have to deal with these issues in the privacy context, the prospect of having to do so in relation to defamation issues as well is likely to send a chill down the spine of the media, many sections of which are already convinced that English libel laws are excessively claimant-friendly.
Of course the Court of Appeal in Clift did not seek to answer (or even ask) any of these questions. And on one view, Clift does little more than follow the well trodden path whereby the Convention is used to afford strong protection to the interests of individuals in defamation cases involving public authorities (see Derbyshire County Council v Times Newspapers  AC 534). Yet it is difficult to see how an argument of logic and/or principle for confining it in this way would be formulated. Doubtless the courts will soon face some of the above questions. And, as the case law in the privacy arena has shown, the consequences of the courts doing so are potentially far reaching indeed.
Lorna Skinner is a barrister and Edward Craven a trainee barrister at Matrix Chambers.
Clift, and the can of worms it opened, is being put to good use in our claim, which seeks to challenge mental health stigma, in connection with child safeguarding. The Clift case raises some tantalising questions, some of which Lorna and Edward have raised in their article, and some of which are make-or-break issues for us.
My partner and I are litigants in person with a defamation claim against an NHS trust defendant which has conceded that it is a public authority. The defendant says it had a duty to document as it did, its child safeguarding “concerns” touching upon our unborn son. Yet these concerns, it is more-or-less admitted, were based more or-less entirely upon suspicions of mental illness in one or both parents. We say (with good reason) that mental illness per se does not predict child neglect or abuse, and that the common assumption that it does is a prejudice that is in no way evidence-based. In any case, we say, even if the prejudice could be shown to be soundly evidence-based, acting upon such a prejudice still amounts to “profiling”, as would be unacceptable against (say) an ethnic minority under Article 14. Profiling in order to catch potential child abusers before they offend, by singling out the mentally ill for less favourable treatment as touching their Article 8 rights like this, is no less politically correct than store detectives in the USA targeting African Americans when looking out for shop-lifters, even if African Americans do shop lift more than other ethnic groups (or at least get caught more often, because of the profiling).
When the interference with the 8(1) right is thus explicitly pleaded as the consequence of a conscious and deliberate policy of discrimination against parents perceived to have a mental health “disability”, would not the inherent breach of Article 14 that is thus admitted in the defence pleadings (but not named as such) automatically cause the publication to fail the “in accordance with law” and/or proportionality tests of 8(2)?
Do readers of this blog think that it might be possible to persuade the court of first instance (QB) to anglicise the European convention proportionality test in Article 8(2) so-to-speak, by agreeing with the following alternative way of expressing what it is we have to prove: that we only have to prove negligence (easier than proving malice), because Article 8 nowadays imposes a “duty of care” on a public authority, not to interfere with the right to reputation “negligently”, for example by omitting to take “reasonable” steps to ascertain the veracity of oral gossip before committing it to writing, inter alia in a publication in hospital medical notes, to which a huge number of staff have unfettered access?
On whom rests the burden of proof, that interference was, or was not, compliant with 8(2)?
In Clift, the judge decided, not the jury, suggesting that 8(2) compliance was a question of law, not fact. But might there not be questions of fact best left to a jury, on which findings would be needed, in order to inform any ruling of law as to whether or not the defendant had in fact complied with 8(2) in making the publications complained of?