Wilkinson v Downton and freedom of expression: Should a nineteenth century tort limit an author’s ability to tell his own life story?

In ordinary human discourse, words may be spoken which may be abusive, untrue or insulting. The person addressed may, as a result, feel distressed or even humiliated. Such words may have serious legal consequences, if, for example, they amount to a course of conduct amounting to harassment under the Protection from Harassment Act 1997 or give rise to a public order offence. When, however, will the publication of true words which cause distress to another amount to an actionable tort? This question faced the Supreme Court recently in Rhodes v OPO [2015] UKSC 32. Here, parties acting on behalf of the autistic son of James Rhodes sought to prevent the publication of passages from a book written by Rhodes which his ex-wife feared would have an adverse affect on their son’s health. The book describes the traumatic upbringing of James Rhodes, an internationally renowned concert pianist, and while disturbing in places, notably for its account of the defendant’s sexual abuse at an early age and its impact of his life, seeks to set out the defendant’s life story in his own words. As the Supreme Court acknowledged, the freedom to report the truth is a basic right to which the law gives a very high level of protection.

Nevertheless, the Court of Appeal in this case ([2014] EWCA Civ 1277) had been persuaded to grant an interim injunction in the claimant’s favour on the basis of the rarely used tort of Wilkinson v Downton [1897] 2 Q.B. 57, having rejected claims based on negligence and misuse of private information. This might seem surprising in view of the obvious freedom of expression concerns and indeed such a result did require an extension of the tort beyond its traditional context of conduct consisting of false words or threats to conduct which was simply deemed unjustifiable. In the words of Arden L.J. at [69], “the act need only be unjustified in the sense that the defendant was not entitled to do it vis à vis the particular claimant ... [The defendant] has accepted a responsibility [in matrimonial proceedings] to use his best endeavours to ensure that [his son] 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.”

In a significant ruling, the Supreme Court unanimously overturned the Court of Appeal and, in so doing, both determined the modern scope of the rule in Wilkinson v Downton and gave helpful guidance relating to interim injunctive relief in this context. The Court identified three key elements to the tort: conduct, mental state and consequences. In terms of conduct, it was necessary to establish words or conduct directed towards the claimant for which there was no justification or excuse. Here, the Court of Appeal was found to have erred in failing to consider the question of justification more widely, not simply in relation to the claimant, but also in relation to the legitimate interest of the defendant to tell his story to the world in his own words and the corresponding interest of the public in hearing his story. Further, although technically obiter, after a detailed historical review, the Court found that the mental element for the tort would be established by identifying an intention to cause severe mental or emotional distress which in fact results in recognisable illness. Such a definition would exclude recklessness. The Court adhered to the view that in terms of consequences, physical harm or a recognised psychiatric illness would have to be shown, although Lord Neuberger did argue at [119] that where an intention to cause distress was required, significant distress should be sufficient. The Court was also dismissive of the form of injunction awarded by the Court of Appeal which it found “bowdlerised” the original text and in effect imposed judicial editorial control over the manner in which the defendant exercised his right to convey information to the public. It also lacked certainty (see Attorney General v Punch Ltd [2002] UKHL 50, [35]).

In favouring freedom of expression, the Court did not seek to diminish the need to protect vulnerable children from material which would harm them, but argued that reliance on this obscure tort was not the correct way to deal with such issues. In so doing, it recognised the limitations of private law litigation in such disputes. Resurrecting a nineteenth century tort is far from the best way to deal with the challenges arising from the widespread publication of private material in the twenty-first century and the Supreme Court’s analysis of this tort, from its historical origins to the present day, will provide valuable guidance for those who seek to rely on this tort in future litigation.

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Professor Paula Giliker (University of Bristol) is speaking at the Journal of Professional Negligence 2015 Seminar: Vicarious Liability and Non-Delegable Duties, on the 25th September, 2015. Click on the link for more details.

More information on Professor Giliker can be found here.

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