Distinguishing harm from misuse in privacy law: Khuja v Times Newspapers – Paul Wragg

22 07 2017

The long-awaited judgment in Khuja (formerly known as PNM) v Times Newspapers Limited is the right decision.  But it was not unanimously decided.  It is on the dissenting judgments of Lords Kerr and Wilson that this post focuses. 

Their view highlights important but, I say, flawed (or better yet misplaced) concerns about the deleterious effect of police attention on a person’s reputation.

A summary of the judgment is available here.  In brief, the appellant, Mr Tariq Khuja, is a prominent, successful business man in Oxfordshire.  He was arrested as part of Operation Bullfinch – an investigation into organised child sex grooming and child prostitution in the Oxford area.  He was later released from arrest without charge.  An injunction was granted on contempt grounds: that disclosure of his identity might compromise future proceedings against the appellant, should any arise.  In proceedings arising from Operation Bullfinch (against other defendants), one of the complainants gave evidence that a man (the Supreme Court refers to him as X) called Tariq had had sex with her on several occasions when she was 13 years old.  She did not know his surname but gave a detailed description of him to the police.  Mr Khuja subsequently participated in an identity parade in which the complainant said she did not think X was there.  After the appellant was released from arrest without charge, The Times and Oxford Mail sought to have the injunction discharged.  This prompted the appellant to apply for an interim injunction restraining publication of his arrest in connection with the investigation into child offences, etc, on the basis it would otherwise be a misuse of private information.

This application was dismissed by Mr Justice Tugendhat at first instance and subsequently by the Court of Appeal.  The majority of the Supreme Court saw no reason to uphold the appeal.  In their view, amongst other things, the appellant could show no reasonable expectation of privacy in the information at stake since he wanted to prevent dissemination of information disclosed at a public trial.  Further, a pre-emptive injunction to avoid potential damage to family life or reputation could not succeed given that the threat to privacy was outweighed by the threat to open justice.  It was acknowledged that, generally, publication of a suspect’s identity is important to the administration of justice since it may ‘encourage witnesses to come forward, or lend significance to the fact if’ none do.

In Lord Kerr and Lord Wilson’s view, though, the majority’s judgment was wrong.  According to them, the whole line of reasoning that led Mr Justice Tugendhat – and the Court of Appeal and the majority of their brethren – to find against Mr Khuja was built on a flawed assumption (articulated by Lord Rodger in a different case) that the public would think the appellant innocent of any crime despite being arrested.  ‘We have no difficulty in accepting the proposition’ said their Lordships ‘that most people understand that the law does not regard as guilty a man who has been no more than arrested or even charged.  That, however, is distinctly different from saying that most people do not themselves regard him as guilty’.

This, they said, changed the nature of the balancing exercise under Articles 8 and 10.  Instead, the Court ought to have recognised the ‘profound harm to the reputational, social, emotional and even physical aspects of his private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty’.  The irony in their dissent is that they appear to displace one unsubstantiated claim for another.  There is nothing in the judgment to evidence this catastrophic effect.

What is more interesting, though, to my mind, is that having said the balancing exercise was flawed, their Lordships do not show how this was the case.  Even if it is accepted that the assumption of innocence (that is, public acceptance of that innocence) is flawed, and even if identification would cause needless harm to the appellant, it is not shown how this would have made the privacy claim more powerful than the opposing free speech claim.  Their Lordships accepted that identification of the appellant was a matter of public interest.  Indeed, they say ‘there is no doubt that the naming of him in the criminal trial create[d] a powerful extra dimension to the public interest in the proposed publications’.  So, as far as their combined judgment makes plain, it may be said that the privacy claim and the public interest claim in publication were both weighty.  What, then, should have caused the balance to tip in the appellant’s favour?  Sadly, we do not know what was in the minds of Lord Kerr and Lord Wilson on this point, because they do not tell us.  They leave their judgment on a cliff-hanger, and I quote the final paragraph in full:

‘At the end of this only interim inquiry, our view is that the scales have descended heavily in favour of PNM’s rights under Article 8; that he is likely to have established his right to an injunction against identification at full trial; and, with great respect to our colleagues, that they are wrong to be dismissing his appeal’

As I have said previously here, here and here, it is a failing of the misuse of private information tort jurisprudence that the courts have still not clearly identified how the weight of the public interest claim in disclosures of private information should be calculated.  We know, sort of, what makes for a public interest story, but not how we determine the relative strength of those stories.  But normally, as I have also said, the fact of public interest expression being at stake tips the balance in the defendant’s favour.  So why might Lords Kerr and Wilson have thought that the usual approach should not apply here?

Admittedly, this is a question without an answer, but they do place particular emphasis on the public thinking the appellant ‘not only… guilty of crimes which understandably attract an extreme degree of public outrage but also that he had so far evaded punishment for them’.  In their view, then, there is merit in knowledge of his arrest being concealed from public view.  They derive support for this from two places: (1) the recommendation in Lord Justice Leveson’s report on press ethics that, in light of the treatment Christopher Jefferies received, ‘the police should not release the names or identifying details of those who are arrested or suspected of a crime’ and (2) the view of Sir Richard Henriques, in his review of the Metropolitan Police Service’s handing of non-recent sexual offence investigations alleged against persons of public prominence, that a statutory scheme of anonymity pre-charge should be introduced.

These are important points, but they have less value – I would say they have no value – in the development of common law actions against private actors.  The police and the courts are public authorities and, as such, are bound by s 6 of the Human Rights Act 1998, as we know.  They are, therefore, under a statutory duty to act compatibility with human rights, including the right to respect for private and family life.  It is for that reason that the College of Policing, in agreement with Lord Justice Leveson, changed its policy on relations with the media so that, at para 3.5.2, ‘the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public.’  Likewise, the judiciary has complied with its obligations by interpreting the common law in a way that is compatible with rights.  But, it cannot be said that the press is under any obligation to uphold and protect anyone’s human rights.  All that can be said is that a court may order interim relief or an award of damages against them if they misuse the private information of others.

This distinction is significant, for Lords Kerr and Wilson do not say how the press has, or would, misuse the private information in their possession if they report the fact of concluded police interest in Tariq Khuja, etc.  This makes the situation materially different from that of Christopher Jefferies because the press had affected his private life severely through the most horrible and vindictive reporting.  There it could be said that the press had misused private information (and had defamed him).  Furthermore, the apprehended misuse (whatever it may be) is not, it seems, to do with the press; the potential disruption to home life and reputation will be caused by the reaction of the public to the news.  In other words, the harm is contingent upon an idiosyncratic reaction from the public.  But, as the majority recognised, should that arise, the appellant may have recourse to the law to protect him and his interests, eg, through private or criminal

Nevertheless, Lord Kerr and Wilson’s dissenting judgment is important.  It reminds us that in misuse of private information claims, it is not enough to show simply that unwanted press coverage may cause harm.  It must be shown that the harm is the result of press misuse.  The two are not the same.

Dr Paul Wragg is an Associate Professor of Law at the University of Leeds and an Associate Fellow of the Inner Temple.  He is also Editor-in-Chief of Communications Law (Bloomsbury Professional).

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