The common law has long protected reputation very highly. The principal means by which it has done this is the tort of defamation. Justice Hallett in Foaminol Laboratories Ltd v British Artid Plastics Ltd ([1941] 2 All ER 393) famously remarked that “a claim for mere loss of reputation is the proper subject of an action for defamation and cannot ordinarily be sustained by means of any other form of action”.

This naturally raises the question of when a claim involves “mere” loss of reputation and when it implicates another form of legally recognised harm.

Defamation is not the only cause of action which historically has been used to protect reputation, directly or indirectly. The tort of injurious falsehood developed alongside the tort of defamation and protects a person’s interest in his or her goods or services or business. Particularly for corporate reputations, defamation and injurious falsehood can overlap considerably. Misleading or deceptive conduct may be used to protect reputation.

Recently, two decisions of courts in the United Kingdom have considered how causes of action other than defamation may, or may not, protect reputation.

The decision of Justice Mann in Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch) has been widely reported around the world. Justice Mann ordered the BBC to pay £210,000 damages for misuse of private information.

His Lordship found that Sir Cliff Richard’s reasonable expectation of privacy not to be identified as being suspected of a historical sexual offence outweighed the BBC’s freedom of expression to report on the allegation and to broadcast a police search of his property.

An interesting but comparatively neglected aspect of the judgment is the consideration of damage to reputation in the assessment of damages for misuse of private information. The BBC argued that, to the extent that Sir Cliff’s claim relied upon damage to reputation, it was only compensable in defamation, not privacy. Justice Mann rejected this submission:

“It is therefore quite plain that the protection of reputation is part of the function of the law of privacy as well as the function of defamation law. That is entirely rational. As is obvious to anyone acquainted with the ways of the world, reputational harm can arise from matters of which are true but within the scope of a privacy right.”

Adopting this approach, the developing English law of privacy will continue to eclipse defamation law, without necessarily explaining how defamation and privacy interact. The lesson for Australian defamation and privacy law reformers, for careful consideration, is how any new right to privacy would interact with the well-settled principles of defamation law.

Although misuse of private information may now afford a plaintiff indirect protection of reputation under English law, a recent decision of the United Kingdom Supreme Court, James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40, has demonstrated the limits of the law of negligence in protecting reputation.

Previously, English law has gone further than Australian law in allowing negligence, particularly negligent misstatement, to provide protection for damaged reputations (and the economic losses that flow from them).

In Spring v Guardian Assurance Plc [1995] 2 AC 296, the House of Lords found that an employer can owe a duty of care in negligence to a former employee in relation to the giving of a reference to a prospective new employer.

This was the case even though the giving of a reference, if defamatory, would be completely defensible – it would be published on an occasion of qualified privilege, which would only be lost if the employer was actuated by a dominant improper motive in the giving of the reference.

Under Australian law, such a novel duty of care would be considered an incoherent development in the law of negligence and would be unlikely to be recognised, following the High Court of Australia’s judgment in Sullivan v Moody (2001) 207 CLR 562.

James-Bowen v Commissioner of Police of the Metropolis ([2018] UKSC 40) suggests that the English law of negligence is unlikely to continue to expand to provide further protection to reputation outside defamation.

The case concerned whether the Metropolitan Police Commissioner owed a duty of care to four police officers. The police officers were involved in the arrest of a suspected terrorist. The suspect complained. The police officers were cleared by investigations by the Metropolitan Police, the Crown Prosecution Service and, ultimately, the Independent Police Complaints Commission. During the investigation by the IPCC, however, the names of the officers were publicly released.

The suspect commenced civil proceedings against the Metropolitan Police Commissioner for battery and assault by the police officers. The police officers were not defendants in the civil proceedings. They refused to give evidence without special measures being put in place. The Metropolitan Police Commissioner settled the proceedings with the suspect, then ordered an investigation into the police officers’ refusal to give evidence. The police officers were prosecuted for assault and were acquitted at trial.

The police officers then commenced proceedings against the Metropolitan Police Commissioner for breach of contract, negligence and misfeasance in public office. They claimed that the Police Commissioner owed them a duty of care not to inflict reputational, economic and psychiatric damage in the conduct of the proceedings brought by the suspect.

Although the proceedings were struck out at first instance, the Court of Appeal allowed the police officers’ claim to proceed for a duty of care to protect against reputational and economic, but not psychiatric, harm. On further appeal to the United Kingdom Supreme Court, Lord Lloyd-Jones, giving the judgment of the court, allowed the appeal and dismissed the claim.

In doing so, his Lordship observed:

“The law protects reputation in a variety of ways in different circumstances. Causes of action such as libel, slander, malicious falsehood and passing off are designed to protect reputation. Moreover, a variety of other causes of action including breach of confidence, misuse of private information and causes of action in relation to data protection and intellectual property may often indirectly achieve this result.”

He went on to acknowledge that there was no general duty of care in negligence not to inflict reputational harm but that, in certain circumstances, such a duty of care might be imposed, citing Spring v Guardian Assurance Plc [1995] 2 AC 296 as an example.

Lord Lloyd-Jones found that, in the present case, policy considerations suggested that it was not fair, just and reasonable to impose a duty of care on the Metropolitan Police Commissioner in her effective position as the police officers’ employer.

This was because the employer and the employee had different, conflicting interests in the civil proceedings brought by the suspect. The employer will be vicariously liable for the employees’ torts but will need to make her own assessment as to the employees’ conduct and decide whether it is worth defending the proceedings or whether it is better to settle.

Imposing a duty of care in these circumstances would allow the police officers to impugn the way in which the Metropolitan Police Commissioner conducted the civil proceedings and would discourage early settlement of proceedings, which was undesirable in the interests of minimising legal costs and, more generally, the efficient working of the legal system.

So the police officers were left without recourse to negligence (and defamation law) to protect themselves against the reputational harm they claimed to have suffered at the hands of their employer.

So the prospects of misuse of private information expanding to encompass the protection of privacy seem likely, whereas the limits of the law of negligence in protecting reputation seem to have been reached under English law.

David Rolph is a professor at the Sydney Law School

This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.