Libel, Privacy and Forgetting: Claims by Rehabilitated Offenders – Hugh Tomlinson QC

In the recent case of G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. the New Jersey Supreme Court considered the difficult issue of the effect of “expungement” or “rehabilitation” of convicted criminals on libel and privacy claims.   The case concerned a libel claim which arose out of a State Senate election in New Jersey. During the campaign the opponents of one candidate issued campaign flyers criticizing him for previously hiring a person with a criminal conviction, the plaintiff G.D. One campaign flyer stated that G.D. was “a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.”  G.D, brought a claim alleging defamation, violation of privacy, and other related torts.  Although G.D. had a conviction for drug dealing he argued that because the record of his conviction was “expunged” and his conviction was — as a matter of law — deemed not to have occurred.  The New Jersey Supreme Court rejected this argument, holding that the expungement statute does not transmute a once-true fact into a falsehood.  The Court also rejected an argument – supported by an amicus brief by the Electronic Privacy Information Center (discussed on the Volokh Conspiracy blog) — that publicising an expunged criminal convictions is tortious under the “disclosure of private facts” tort (the US equivalent of “misuse of private information”).   This was, they held, because he had no reasonable expectation of privacy in the expunged conviction:

G.D. pled guilty and was sentenced in a courtroom that was open to the public. The judgment of conviction in G.D.’s case was a court record available to the public for thirteen years before the entry of the expungement order. During all those years, the information concerning G.D.’s conviction was available to commercial data companies as well as to newspapers and other public organizations. The reality is that criminal-conviction information is disseminated well before the entry of an expungement order.

The Court went on to point out that, at the time of publication, conviction data was posted on the Department of Corrections’ website.   The Court concluded

“This is not a case in which a defendant peered through closed curtains into a bedroom or wrongly acquired a personal diary and made highly private information available to the public. A person has a reasonable expectation of privacy in the sanctity of his or her bedroom and personal diary from peeping toms intent on making private facts titillating fodder for the public. This case, however, deals with public acts, a guilty plea and sentence in a public courtroom, and public facts, court records available to the public over many years”.

The fact that, in New Jersey it is a criminal offence to reveal “the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged” did not affect the position.

Discussion

The decision is has been welcomed by US legal commentators – Eugene Volokh on the Volokh Conspiracy Blog said it “sounds exactly right” – but it gives rise to some difficult issues about the effect of “expungement” and the “right to oblivion”.  Inforrm discussed this emerging right in a post in November 2010 and it has recently been considered on the US Privacy blog “Pogo was Right”, in the context of the GD v Bernard Kenny case (see also the follow up post here).

In relation to libel proceedings and “spent convictions”, the position in England and Wales is dealt with by specific statutory provision.  Section 8 of the Rehabilitation of Offenders Act 1974 (the UK version of an “expungement statute”) provides

(1)  This section applies to any action for libel or slander begun after the commencement of this Act by a rehabilitated person and founded upon the publication of any matter imputing that the plaintiff has committed or been charged with or prosecuted for or convicted of or sentenced for an offence which was the subject of a spent conviction.

(2)  Nothing in section 4(1) above shall affect an action to which this section applies where the publication complained of took place before the conviction in question became spent, and the following provisions of this section shall not apply in any such case.

(3)  Subject to subsections (5) and (6) below, nothing in section 4(1) above shall prevent the defendant in an action to which this section applies from relying on any defence of justification or fair comment or of absolute or qualified privilege which is available to him, or restrict the matters he may establish in support of any such defence.

(4)  Without prejudice to the generality of subsection (3) above, where in any such action malice is alleged against a defendant who is relying on a defence of qualified privilege, nothing in section 4(1) above shall restrict the matters he may establish in rebuttal of the allegation.

(5)  A defendant in any such action shall not by virtue of subsection (3) above be entitled to rely upon the defence of justification if the publication is proved to have been made with malice.

This means that if a publisher says, of a rehabilitated person, that he or she is a convicted criminal, then any resulting libel action can be defended by proving the spent conviction – unless the publication was made with malice.  In this context, this must mean a dominant motive to injure the claimant (see Silkman v Heard 28 February 2001, unrep). It seems highly unlikely that this would ever be established in practice.

In other words, in libel cases the English law achieves by statute a similar position to that reached in the GD v Bernard Kenny case: in practice, the law of libel provides no sanction against the publication of spent convictions.

The question arises does this provide proper protection for the “rehabilitated” criminal? Bearing in mind the fact that defamation claims in relation to spent convictions are dealt with by statute, the only other available remedy would seem to be an action for misuse of private information. The question as to whether disclosure of a spent conviction is a misuse of privacy information has not been explored in the English case law.

The difficult issue is whether there can be a “reasonable expectation of privacy” in a spent conviction.   The obvious counter-argument is that articulated by the New Jersey Supreme Court – that a conviction is a “public fact” and cannot, therefore, be the subject of a privacy claim.

There are two possible responses to this argument.  First, the English law recognises the notion of “relative privacy” – the fact that something has been publicly available at some time in the past is not definitive of the question as to whether it is now “private”.  In Mosley v News Group Newspapers Ltd ([2008] EWHC 687 (QB)), Eady J said:

“The extent to which material is truly “in the public domain” will ultimately depend upon the particular facts before the Court. In Attorney-General v. Greater Manchester Newspapers Ltd [2001] EWHC 530 (QB) the test was applied as to whether certain information was “realistically” accessible to members of the public or only “in theory”.” [26]

In practice, many convictions are pronounced in public courtrooms where few, if any, members of the public are present and are not reported widely (or often, at all) in the press.  In contrast to the New Jersey position, they are not available on public websites.   It could, therefore, be argued that an old “spent” conviction does, in fact, attract a “reasonable expectation of privacy” as it is not “realistically accessible to members of the public”.

Secondly, it might be argued that as a matter of public policy (or perhaps the positive obligations of the State under Article 8), a “spent” conviction should be treated as attracting a “reasonable expectation of privacy” – the expectation would be “reasonable” precisely because the conviction is spent.

Neither of these arguments are straightforward.  In any event, if “misuse of private information” was being invoked, the publication of spent convictions could, potentially,be justified as a matter of public interest.  If, for example, a candidate for public office had a spent conviction for dishonesty then there would a plain public interest in disclosing it.

The issue of “privacy” and the “right to be forgotten” is attracting increasing interest (it is the subject of a Westminster Media Forum event on 22 March).  It is likely to be the subject of further analysis by the domestic and European Courts.

Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee.