Privacy is back in the news. Last week’s High Court judgment against Mirror Group Newspapers, in which Mr Justice Mann awarded £1.2m to a small number of celebrities whose phones had been hacked, sets a new benchmark for damages in this relatively new area of law. There is no doubt that the media need to take careful stock of it if they wish to avoid payouts in the region of £260,000 – roughly what the actress Sadie Frost picked up.
However, a less widely reported judgment is arguably just as notable – and gives the media cause for comfort rather than worry. The case of Rhodes v OPO scotches an attempted application of an ancient law that could have had dramatic consequences for the media.
James Rhodes, an internationally-renowned concert pianist, wrote an autobiography which was to be published by Canongate. That is, until his ex-wife had its publication blocked. The fact that she succeeded in obtaining an injunction, brought on behalf of the couple’s son, prompted consternation among critics, not least because this was a Court of Appeal decision. It has – to the relief of literary editors and publishers – now been overturned by the Supreme Court.
Rhodes’ book contained a number of harrowing descriptions of sexual abuse that he suffered as a schoolboy. He detailed traumatic rapes (so severe they caused spinal injury), dark episodes of self-harming and suicidal thoughts. Poignantly, music became a lifeline – indeed his salvation.
His ex-wife, an American novelist, sought an order on the boy’s behalf preventing worldwide publication of the book lest its contents cause the son irreparable damage. Because the child has significant disabilities, including difficulty processing information contextually, his mother feared that Rhodes’ vivid descriptions might cause permanent psychological scarring, or even attempts to imitate his father’s self-harm.
The claim had no basis in libel, copyright or harassment; further claims for negligence and misuse of private information were also struck out. The claimant’s last hope arose from a 19th century case which most law students study and then promptly forget unless they become personal injury lawyers – Wilkinson v Downton (1897). Here, Wilkinson successfully sued a prankster who pretended that her husband had broken his legs in an accident, causing her nervous shock, vomiting and weeks of physical pain.
The Court of Appeal heard the arguments that Wilkinson was applicable to the boy’s claim for an injunction – and agreed. Its judges decided that, while Rhodes did not actually intend to cause his son harm, intention could be "imputed" because he knew about his vulnerabilities and was therefore "reckless" in his attempts to publish material that could harm him.
The Court of Appeal’s ruling was an extraordinary extension of a law that is usually confined to academic debate. This was all the more so given that Rhodes’ book barely mentioned the child, aside from a dedication. Fortunately for all publishers, the Supreme Court was as amazed as those watching this case from the sidelines. The court held that the claim did not engage the claimant, let alone require justification in the public interest, and was therefore “flawed conceptually and procedurally” with no proper legal basis.
Holding that, while the law should protect vulnerable children as far as possible, it is a vital basic freedom to disseminate true life experiences. Lady Hale and Lord Toulson declared: “Freedom to report the truth is a basic right to which the law gives a very high level of protection… The right to report the truth is justification in itself.”
Lord Neuberger went even further, saying that, even had Rhodes’ accounts been entirely fabricated, he did not see it as a judge’s place to assess the importance of the publication to the public, or even to the writer. He said: “I am unenthusiastic about deciding whether the book, or any other work, should be published by reference to a judge’s assessment.”
Moreover, he said it is not just the material’s content, but also its tone and style, which should be left to publishers except in the rarest of circumstances:
“[T]he 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. Freedom only to speak inoffensively is not worth having'.”
The injunction had wrongly and subjectively focused on the text’s “graphic” descriptions and was therefore invalid due to insufficient clarity.
Coming in the same week as the Mirror Group Newspapers judgment, the Supreme Court’s finding that courts should not assume editorial control is a welcome boost to the media.
The judgment prevents a potential tidal wave of litigants who could have stifled freedom of speech on the basis that a loved one could suffer harm should they come into contact with hard truths which are neither about them, nor directed at them. Crucially, it ensures that victims of abuse can achieve the catharsis that recounting their story can provide – and safeguards those publishers who help them tell their story from unjust legal reprisals.
Nigel Tait is a managing partner at Carter-Ruck