TO HELL AND BACK AGAIN – part 2

It will not surprise you to learn that a 5-judge Supreme Court gave the Court of Appeal’s gagging orders in the landmark freedom of speech case James Rhodes & Anr v OPO & Anr short shift. The appeal was heard in January 2015. Three NGOs concerned with freedom of speech – English PEN, Article 19 and Index on Censorship – provided submissions in writing. The decision was given on 20 May 2015.

Much of the Supreme Court’s ruling is given over to a fairly technical consideration of a famous nineteenth-century case about a woman who fell ill, after a prankster told her that her husband had been seriously injured during a day at the races, when this was a lie.

That test case generated a series of cases concerned with the intentional infliction of psychological harm, or what is known in the United States of America as “the tort of outrage”. It requires extreme and outrageous conduct causing severe emotional distress, resulting in bodily harm.

I will park consideration, for now, of the Supreme Court’s high-powered legal discussion of that aspect. Instead, I focus in this post on what the Supreme Court had to say about Rhodes’ right to freedom of expression. Article 10.1 of the European Convention on Human Rights and Fundamental Freedoms provides:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 

The Supreme Court pointed out that the Court of Appeal’s order was novel in two respects.

  • First, it gagged the publication of autobiographical material, as opposed to material which could be considered untrue or threatening.
  • Second, the ban was directed not to the substance of the autobiographical material, as such, “but to the vivid language used to communicate it” i.e. Rhodes’ choice of literary style. It was an exercise in bowdlerisation.

The lead judgment accuses the Court of Appeal of tunnel vision. The latter’s focus on the risk of harm to Rhodes’ son ignored the wider issues of principle, namely, Rhodes’ right to tell his own story to the world at large in the way in which he wished to tell it, and the corresponding public interest in hearing his story.  Freedom of speech is the trump card, though the Court of Appeal had worryingly failed to recognise this.

When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. [bold emphasis added]

And the Supreme Court went on to emphasise that there is a fundamental right to report the truth, regardless of whether that may cause distress to another:

Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example, Napier v Pressdram Ltd [2009] EWCA Civ 443[2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. [bold emphasis added]

In Napier, a case involving Private Eye, another set of Court of Appeal judges had said: “Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle)….”

The Supreme Court said that the Court of Appeal had erred by allowing itself to act as an editor of Rhodes’ memoir:

His writing contains dark descriptions of emotional hell, self-hatred and rage, as can be seen in the extracts which we have set out. The reader gains an insight into his pain but also his resilience and achievements. To lighten the darkness would reduce its effect. The court has taken editorial control over the manner in which the appellant’s story is expressed. A right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively. [bold emphasis added]

It cited two earlier cases (Naomi Campbell’s privacy case against the Mirror in 2004, and a case involving the Guardian in 2010), where the courts agreed that the public is entitled to more than the dry and dusty reporting of facts. It is entirely legitimate, when telling a story for public consumption, for a narrator to add details and colour. Thus, in Campbell’s case, Lord Hoffman had observed: “judges are not newspaper editors”.

And in the Guardian case, the Supreme Court had said:

Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed….editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. 

Lord Neuberger, the President of the Supreme Court, appended his own supporting judgment. He said that it should not be determinative whether the memoir concerned issues of public importance.

I do not consider that it would make any difference if the experiences which the defendant describes could be shown to have been invented, or if the book had been written as a novel by someone who had not been sexually abused. It is true that the 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” – see Redmond-Bate v Director of Public Prosecutions 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”. [bold emphasis added]

Well, quite.

Lord Neuberger went on to attack the Court of Appeal’s shaky logic:

…it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it). 

And he hit out at the terms of the injunction restraining publication which the court below made, by which the court below took exception to Rhodes’ manner of expression:

Freedom of expression extends not merely to what is said but also to how it is said. Whether a communication is made orally or in writing, the manner or style in which it is expressed can have a very substantial effect on what is actually conveyed to the listener or reader. One cannot realistically detach style from content in law any more than one can do so in literature or linguistic philosophy.

In his consideration of the proper parameters of a tort of outrage, Lord Neuberger emphasised that the law should not interfere with “the give and take of ordinary human discourse”, which can include “unpleasant, heated arguments” as well as “normal, including trenchant, journalism and other writing”.  He went on:

An unprompted statement made simply because the defendant wanted to say it or because he was inspired by malice, as in Janvier, or something very close to malice, as in Wilkinson, may be different from the same statement made in the course of a heated argument, especially if provoked by a series of wounding statements by the defendant. Similarly, it would be wrong for this tort to be invoked to justify relief against a polemic op-ed newspaper article or a strongly worded and antipathetic biography, save in the most unusual circumstances. The tort should not somehow be used to extend or supplement the law of defamation.

And he emphasised the importance of the law “not sticking its nose into human discourse except where necessary”.

This ruling is extremely important, both because of its respect for the fundamental importance of freedom of expression, and also because it stresses the importance of the courts not acting as petty censors of literary style or reporting techniques, or as latterday Thomas Bowdlers, even when agitated by shroud-waving experts or excessively risk-averse parents. Or officious busybodies, one might add.