In its decision in OPO v. James Rhodes ( UKSC 32), the Supreme Court has put the case of Wilkinson v. Downton firmly back in its box, not to be disposed of entirely, but certainly not to be used again against the those in the position of the defendants, the author and pianist James Rhodes and the publisher Canongate.
This is a very welcome decision for all publishers. Indeed, it has been difficult to understand why, after 15 years of intense focus on the balance between Articles 8 and 10, the Court of Appeal thought it was appropriate to revive this nineteenth century tort to censor Rhodes’ autobiography Instrumental.
Rhodes’ book tells the “searing account” of his life, the physical harms and psychological effects he suffered as a result of years of rape having been abused as a young child by a teacher. Interwoven with these “dark descriptions of emotional hell, self-hatred and rage”, he describes his relationship with music. The Court of Appeal banned publication unless the “graphic” accounts of his abuse and incidents of self harm were excised, finding that such passages were likely to cause psychological harm to his 11 year old son. Despite the author’s case that he did not expect his son to see the book until he was much older, the Court of Appeal held that intention to cause the child harm could be imputed to him because he was aware of the psychiatric evidence which said it was likely. In the circumstances, so the Court of Appeal said, the principle in Wilkinson v. Downton applied and publication could not be justified.
The Court of Appeal’s injunction in favour of the child claimant manifestly raised important questions about freedom of speech. The truth of Rhodes’ account was not in issue. There was no claim for libel or, say, infringement of copyright or harassment, and claims for misuse of private information and, even, negligence had been struck out. A diligent publisher might reasonably have considered that the book was fit for publication without legal risk and would certainly not have thought it necessary to take an appeal to the Supreme Court for confirmation that it could publish.
Fortunately, and clearly correctly, the Supreme Court answers the question posed in paragraph 1 of the judgment of Lady Hale and Lord Toulson as to whether Wilkinson v. Downton can ever be used to prevent a person from publishing true information about himself with a resounding “no”.
In that judgment (with which both Lord Clarke and Lord Wilson agree) the Court carefully reviews the history of Wilkinson v. Downton and defines the narrow limits of this tort of wilful infringement of the right to personal safety. It requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse. It requires an intention to cause physical harm or severe mental or emotional distress. It requires that, in consequence, the claimant suffers physical harm or a recognised psychiatric illness. In the words of Lord Neuberger (in his own separate judgment at paragraph 97), it “cannot possibly apply to this case”.
The Court of Appeal had made the mistake of treating the publication of the book as conduct directed by Rhodes towards his son by reason of the book’s dedication to the boy and certain other passages said to be addressed to him (which the judges in the Supreme Court could not find). This was plainly a strange finding in relation to a book destined for publication in the UK and much of the rest of the English speaking world, for sale in shops and online. The Supreme Court has no doubt the finding was an error. The book (as with most books, surely?) was for “a wide audience” and the Court of Appeal wrongly excluded consideration of Rhodes’ legitimate interest in telling his story to that wide audience and the corresponding interest of the audience in hearing his story.
The Supreme Court confirms that there is “every justification” for publication of Rhodes’ story, “a work of general interest”.
“A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it” .
However, importantly for publishers, the Court is at pains to emphasise that an identifiable general interest is not required in order to justify the publication: the issue simply does not arise. Absent issues of libel or privacy and the like, the truth of the publication is justification in itself (see Lady Hale and Lord Toulson at ).
“Freedom to report the truth is a basic right to which the law gives a very high level of protection…It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself.”
Lord Neuberger, in his concurring judgment, agrees:
“While I agree that many people would regard the book as being in some respects in the public interest, it is not necessary to decide this appeal on that ground. Unless it is necessary to do so, I am unenthusiastic about deciding whether a book, or any other work, should be published by reference to a judge’s assessment of the importance of the publication to the public or even to the writer. In the present case, I do not consider that it would make any difference if the experiences which the defendant describes could be shown to have been invented, or if the book had been written as a novel by someone who had not been sexually abused.” 
The Supreme Court is also critical of the Court of Appeal’s attempt to take “editorial control” over the manner in which Rhodes tells his story. The injunction permitted publication “only in a bowdlerised version”. Fortunately, the Court affirms that a right to convey information to the public carries with it “a right to choose the language in which it is expressed in order to convey the information most effectively” (). The Court should not interfere in how the story is told. As Lord Neuberger says:
“It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v. DPP (1999) 7 BHRC 375, para 20, per Sedley J. As he memorably added, “[f]reedom only to speak inoffensively is not worth having,
So editorial control is restored by the Court to the author and publisher and Wilkinson v. Downton can be filed away. Of course, if you set out to publish words directed at an individual or group with the intention of causing them “physical harm or severe mental or emotional distress” and you have no justification for doing so, you should consider your risks under Wilkinson v. Downton. If not, the usual legal checklist will suffice.
Lucy Moorman, partner and barrister at Simons Muirhead & Burton
Canongate was represented by Martin Soames, Gordon Clough and Jeffrey Smele of Simons Muirhead & Burton.