Defamation and False Privacy, some thoughts – Hugh Tomlinson QC

It is now well established in English law that a claim for misuse of private information can be brought in relation to information which purports to be private information about the claimant, whether or not the information is true.  French privacy law has long recognised the actionability of such publications – for example, in the case of Bardot v Ici Paris (TGI Paris, 1st Chamber, 28 March 1984) where the actress recovered damages in respect of a false story of a suicide attempt. 

The case law of the European Court of Human Rights has, of course, been strongly influenced by the French approach and in cases where domestic defamation claims are in issue the Court often deals with true and false allegations as part of the same analysis – thus running together what, in English law, were conventionally regarded as watertight separate categories – complaints about false information (dealt with by means of defamation actions) and complaints about true information (dealt with by claims for breach of confidence). For example, in Standard Verlags GmbH v. Austria (Judgment of 4 June 2009) the press had published an article concerning the marriage of the then Federal President and, in particular, a rumour that his wife was about to leave him. The allegations were, apparently, largely false and were also defamatory (double adultery). However, the Court approached the case from a “privacy” perspective, holding that the publications were an unjustified interference with private life.

In the leading case of McKennitt v Ash ([2006] EWCA Civ 1714; [2008] QB 73) the Court of Appeal confirmed that the English law took a similar approach.  As Longmore LJ said in an oft quoted passage:

“The question in a case of misuse of private information is whether the information is private not whether it is true or false. The truth or falsity of the information is an irrelevant inquiry in deciding whether the information is entitled to be protected and judges should be chary of becoming side-tracked into that irrelevant inquiry” [86].

In the subsequent case of P v Quigley ([2008] EWHC 1051 (QB)) Eady J granted a permanent privacy injunction to restrain the publication of a “novella” on the Internet, “in which P and Q would appear, thinly disguised, as partaking in various unsavoury and fictitious sexual activities”.  In Beckham v Bauer the claimant sued over the publication a story concerning fictitious telephone calls and text messages passing between her and her husband.   The case was settled before trial but it was not disputed that there was a potentially valid “false privacy” claim.

There is, therefore, a potential overlap between privacy and defamation. In Terry v Persons Unknown ([2010] EWHC 119 (QB)) Mr Justice Tugendhat expressed the view that privacy and defamation only overlap in a limited class of cases. He identified four, there being no difficulty in the first three groups of cases:

“The first group of cases, where there is no overlap, is where the information cannot be said to be defamatory (eg Douglas v Hello!, and Murray). It is the law of confidence, privacy and harassment that are likely to govern such cases. There is a second group of cases where there is an overlap, but where it is unlikely that it could be said that protection of reputation is the nub of the claim. These are cases where the information would in the past have been said to be defamatory even though it related to matters which were involuntary eg disease. There was always a difficulty in fitting such cases into defamation, but it was done because of the absence of any alternative cause of action. There is a third group of cases where there is an overlap, but no inconsistency. These are cases where the information relates to conduct which is voluntary, and alleged to be seriously unlawful, even if it is personal (eg sexual or financial). The claimant is unlikely to succeed whether at an interim application or (if the allegation is proved) at trial, whether under the law of defamation or the law of privacy”.

It was, he suggested, in the fourth group of cases, where potential problems could arise. These are cases

“where the information relates to conduct which is voluntary, discreditable, and personal (eg sexual or financial) but not unlawful (or not seriously so). In defamation, if the defendant can prove one of the libel defences, he will not have to establish any public interest (except in the case of Reynolds privilege, where the law does require consideration of the seriousness of the allegation, including from the point of view of the claimant). But if it is the claimant’s choice alone that determines that the only cause of action which the court may take into account is misuse of private information, then the defendant cannot succeed unless he establishes that it comes within the public interest exception (or, perhaps, that he believes that it comes within that exception)”. [96]

In this fourth class of case a claimant is complaining about information that is private and discreditable but false.  In such cases, Mr Justice Tugendhat pointed out that if false defamatory information was published then the defendant has, in English law, a complete defence of justification or truth

“The point in relation to Justification is that the defendant is free to say anything that is true, however harmful or distressing even if there is no public interest or public benefit. See Lord Denning MR’s statement in Fraser v Evans [1969] 1 QB 349, 360. …  But I note that the harshness of this rule has been tempered by the recent development of the law against harassment. Reputation is an Art 8 right. So the argument is that English law requires reform along the lines of what was recommended by The Select Committee of the House of Lords on the Law of Defamation in 1843. The Committee recommended that the defendant who pleads justification should also have to establish “it was for the benefit of the community that the words should be spoken”. Or there is the model of French law, which has imported from Arts 8 and 10 the concepts of legitimate aim and proportionality.  In the case of a defence of justification, the reputation of a successful claimant can be vindicated by an award of damages if the words are not true. In the case of a successful defence of common law and statutory qualified privilege, a claimant has no means of vindicating his reputation at all. It is not just that damages are not an adequate remedy: there is no remedy in damages and no declaration of falsity” [80].

In other words, if the claimant says that a “private” allegation is true he can make a claim for misuse of private information but, if he says it is false, he will be precluded from make a privacy claim at all and be obliged to sue for defamation.

If this analysis is correct it would mean that the doctrine of “false privacy” is limited to “private non-defamatory information”. Thus if a newspaper threatened to publish information that someone has, say, a brain tumour and syphilis which was was caught from a prostitute then he could sue for misuse of private information in relation to the former, whether it was true or false, but in relation to the latter only if it were true.

It is difficult to see why this distinction should matter. It might be said that, in the one case the “interest” in play was “privacy”, whilst in the other it was “reputation”. However, from a Convention point of view, both are Article 8 rights and there is no “bright line” distinction between them  (see, for example, Heather Rogers’ recent discussion of the Article 8 right to reputation on this blog here and here).

Sir David Eady considered this point in the context of the “rule in Bonnard v Perryman” in his City University Lecture in March 2010 (see our post here, the lecture is also on the Judiciary website, here).  He raised the question as to

“why a different test should be applied to reputation cases from that laid down by Parliament for those concerning protection of privacy. What is the reason why it is, and should remain, more difficult to obtain an injunction to protect reputation than to protect another aspect of human dignity and autonomy, even though both are covered by Article 8? It may prove to be a sufficient answer as a matter of public policy that, in the case of defamation, damages are more often likely to provide an adequate remedy, whereas in privacy cases they are not. But the question at least needs to be thought about”

There is a strong argument for a uniform approach to the publication of private information, whether true or false but the issue awaits comprehensive examination by the English Courts.

This is a revised version of a post which originally appeared on 11 March 2010