IP & IT analysis: How will the court approach attempts to prevent publication on the grounds of emotional distress? Jill Bainbridge, a partner at Blake Morgan LLP (Southampton, England), considers the Court of Appeal's recent expansion of the rule in Wilkinson v Downton.
Original news
OPO v MLA[2014] EWCA Civ 1277, [2014] All ER (D) 117 (Oct)
The High Court had refused O's application for an interim injunction to prevent publication of a semi-autobiographical book written by his father, M. Although the Court of Appeal agreed with the High Court that there was no cause of action for misuse of private information or negligence, it found that publication of the book would constitute deliberate infliction of emotional or psychiatric harm on O, who suffered from attention deficit hyperactivity disorder, Asperger's, dysgraphia and dyspraxia. It therefore granted an interim injunction preventing M from publishing parts of the book pending trial.
What issues did this case raise?
- Whether publication represented misuse of private information.
- Whether publication would breach a duty of care owed by a father to his son.
- Whether publication would amount to a deliberate infliction of emotional harm under the tort established in Wilkinson v Downton [1897] 2 QB 57, [1895-9] All ER Rep 267
- Whether the law of the country where the son resided should be considered in relation to the place of damage.
- Whether the Human Rights Act 1998, s 12, on freedom of expression, was relevant.
What did the Court of Appeal decide on each of those issues?
The High Court judge, Bean J, had held that there was no cause of action based on misuse of private information because the information divulged in the book was about M and not about the private lives of O or his mother. This decision was upheld by Arden LJ in the Court of Appeal.
Bean J had also held that there was no cause of action in negligence because it would not be fair, just and reasonable to impose a duty of care on a parent towards his child. Arden LJ upheld Bean J's decision and drew attention to the case of Barrett v Enfield London Borough Council [1998] QB 367, [1997] 3 All ER 171 in which it was held that 'parents are daily making decisions with regard to their children's future and it seems to me that it would be wholly inappropriate that those decisions, even if they could be shown to be wrong, should be ones which give rise to a liability for damages'. This is a helpful reinforcement of the policy that parents do not owe a duty of care to their children.
Bean J had held that the rule in Wilkinson v Downton did not apply as it did not extend beyond false communications. He found that the danger to the child was not the publication of the book but the fact that extracts from it would become available on the internet. However, Arden LJ held that the communication did not have to be false. This decision departs entirely from earlier case law. Previously, this legal principle has only been applied where the cause of the nervous shock was false communication. Earlier case law also required the communication to have been made directly to the claimant. The Court of Appeal held that this was unnecessary as it was sufficient that the relevant information be disseminated to the world at large if there was a risk that the child may somehow find the information existed. Previous case law and commentary had further implied that the tort was confined to extreme and outrageous conduct. Here, however, the court was prepared to take a wider view, particularly taking account of freedom of expression.
The question was raised in the Court of Appeal as to what the applicable law was, as O resided abroad with his mother. Jurisdiction was determined in accordance with Regulation (EC) 864/2007. Arden LJ held that the primary rule was that the law of the place where the damage occurred applied, but that could be displaced if there were sufficiently favourable prospects at trial of the wrong being held to be manifestly more closely connected with the UK than with O's country of residence since all the decisions about publication were taken in the UK. This decision is again contentious on the grounds that the child is likely to come across the material and thus potentially suffer nervous shock in his country of residence and arguably that should be the applicable law.
In deciding whether to impose an interim injunction and considering the impact that would have on M's freedom of expression, the court had to determine whether O was likely to succeed at trial. The usual basis for an interim injunction is that there is a serious issue to be tried and the balance of convenience favours an injunction. However, where an interim order would affect the right to freedom of expression, the Human Rights Act 1998, s 12 (HRA 1998) provides that the court must be 'satisfied that the applicant is likely to establish that publication should not be allowed'. Arden LJ held that, in this case, a lower standard than 'more likely than not' was justified because if publication was not restrained it would be impossible to backtrack were O to later succeed in demonstrating M's book was seriously damaging to him.
The court stated that an interlocutory application for an injunction was not the occasion for a definitive decision on the scope of the Wilkinson v Downton principle. The court upheld O's claim under the principle on the grounds that the facts of the case were sufficient to establish that he had a good prospect of success in a claim. It granted an interim injunction pending the outcome of the full trial because:
- the book contained graphic descriptions of the abuse which M had suffered and his incidents of self-harm
- those passages were likely to be quoted by reviewers or newspapers serialising the book
- on the uncontradicted expert evidence, those passages were likely to cause enduring psychological harm to O by reason of his Asperger syndrome and other vulnerabilities
- the book was dedicated to O and was in part specifically addressed to him, and
- M had full knowledge of the risks posed to O
To what extent is the judgment helpful in clarifying the law in this area and what are the implications?
The enactment of the Protection from Harassment Act 1997 effectively reduced the scope of the applicability of the tort in Wilkinson v Downton and it is for this reason Arden LJ provided an overview of the case law and its development before concluding her judgment. However, if anything, the decision creates more ambiguity. The court has expanded the scope of the long-established principle in Wilkinson v Downton to now include communications which were not false. This could have significant implications on how this principle is used in the future.
Similarly, in ruling that the communications need not be directed to the claimant, the court has created further ambiguity, particularly where the element of risk is to be ascertained. Banning part of, or an entire, publication because there is a risk that it could become electronically available establishes a perturbing precedent which could be susceptible to abuse and manipulation.
Finally, the court adopted a lower standard with regard to HRA 1998, s 12 in order to bypass its restrictions. This has the potential to extend privacy law. There is a tightrope between privacy law and the democratic right of freedom of speech enjoyed by UK citizens and it should be walked with caution.
Are there still any unresolved issues for which lawyers will need to watch out? If so, how can they avoid any possible problems?
Due to the obscurity of this tort and idiosyncratic nature of the facts of this case, it is unlikely to regularly crop up. However, the case does show the court's willingness to influence and expand the law, and the conclusions reached by Arden LJ will inevitably have consequences on privacy law and ultimately human rights. As noted by the court in its judgment, it is not dealing with the trial of the action but with an interim injunction--it will be the outcome of the main trial that will have the most significant consequences.
Preventing publication of M's book could have severe repercussions. The implications of a decision preventing publication of a book on the grounds that it may cause distress to a family relative could be both wide-reaching and have the potential for others to seek to use this judgment as a way of getting books censored.
How does the case fit in with other developments in this area of law?
The courts have previously applied the Wilkinson v Downton principle in limited situations. The issue in this case was whether the tort was restricted to false words and threats, which was the consensus of preceding case law. The case of Janvier v Sweeney and another [1918-19] All ER Rep 1056 concerned two defendants endeavouring to persuade the plaintiff by false statements and threats, as a result of which the plaintiff fell ill from a nervous shock. The court held that:
'False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable.'
That case approved and was consistent with the ruling in Wilkinson v Downton and was affirmed in Wainwright v Home Office [2003] UKHL 53, [2003] 4 All ER 969, where it was held that there was no common law tort of invasion of privacy. There was a great difference between identifying privacy as a value that underlay the existence of the rule of law and privacy as a principle of law itself. The infliction of humiliation and distress, without more, was not tortious at common law and as such the principle in Wilkinson v Downton can be differentiated from trespass to the person as the cause of harm is indirect. Hale LJ, in Wong v Parkside Health NHS Trust and another [2001] EWCA Civ 1721, [2003] 3 All ER 932, accepted that threatening words were required but stated:
'Although these cases [Wilkinson v Downton and Janvier v Sweeney] were concerned with words, the same principle would obviously apply to the intentional infliction of physical harm by other indirect means, such as digging a pit into which it is intended that another should fall.'
It was this analogy the court sought to build on. As Arden LJ stated:
'In the present case, the answer to the point that [O] has to show that [M]'s threat to publish the work lacks justification is that the act need only be unjustified in the sense that that the defendant was not entitled to do it vis-a-vis the particular claimant. The defendant may be perfectly entitled to dig holes in his garden in any location he chooses to dig them in but not (at least without warning) if they fall within the area he has already agreed to allow the claimant to walk across to take a short cut. Here [M] has accepted a responsibility to use his best endeavours to ensure that [O] is protected from harmful information. That in my judgment is sufficient to mean that there is no justification for his words, if they are likely to produce psychiatric harm.'
The court noted that there is a consistent line of authority that liability is incurred where the defendant wilfully does an act calculated to cause psychiatric harm and causes that harm, whereupon intent is imputed. The court's decision to grant the interim injunction on this basis seems contrary to the main body of prior case law and the court, while reiterating that it was not there to shed light on the Wilkinson v Downton principle, still extended it considerably beyond its former scope. It is therefore relatively difficult to predict future developments because it is very much dependent on the outcome of the trial.
Although this case turns on specific and unusual facts, if the court ultimately finds in O's favour based on the Wilkinson v Downton principle, this will result in both an expansion of privacy law and a restriction on freedom of expression. Moreover, it has the potential for blurring the lines between privacy law, tortious liability and freedom of expression and set a precedent for injuncting works which may expose the past, allowing distress to be cited as a ground for censorship.
First published in LexisPSL Commercial.
