Precensorship of autobiography not valid

A mother sought to prevent a father (James Rhodes a famous concert pianist, author and television filmmaker) from publishing the book ‘Instrumental’ about his life containing certain passages which she considered risk causing psychological harm to their son who was aged 12. Proceedings were brought in child’s name, originally by his mother and now by his godfather as his litigation friend, alleging that publication would constitute a tort against him. The tort in question was that recognised in the case of Wilkinson v Downton [1897] 2 QB 57 and generally known as intentionally causing physical or psychological harm.

In the book Rhodes detailed the sexual abuses he had suffered during his childhood. The book provided a searing account of the physical harms he suffered as a result of the years of rape and of the psychological effects, which made it hard for him to form relationships and left him with an enduring sense of shame and self-loathing. Interwoven with this painful story was the story of his relationship with music.

During the divorce proceedings, the mother and father had agreed to include the following recital, in a residence and contact order:

“And upon the parties agreeing to use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect upon the child’s well-being”

A first draft of the book was sent to the publishers in December 2013. In February 2014 it was leaked to the mother and some changes were made as a result, including the use of pseudonyms for mother and child. The mother did not consider that those changes had gone far enough. She then launched the proceedings on behalf of the child, claiming against the father and the publishers an injunction prohibiting publication without the deletion of a large number of passages. The causes of action alleged were misuse of private information, negligence and the intentional infliction of harm. An anonymity order was made at the same time, prohibiting the publication of any information which might lead to the identification of the child as a party to the proceedings or the subject of the information to which the proceedings related. The application for an interim injunction came before Bean J in private and he dismissed the application and struck the proceedings out on the basis that the child had no cause of action in tort against the father or the publishers. He said that there was no precedent for an order preventing a person from publishing their life story for fear of its causing psychiatric harm to a vulnerable person, nor should there be. He further held that a cause of action under Wilkinson v. Downton did not extend beyond false or threatening words. But the child’s appeal was allowed[2014] EWCA Civ 1277]. The Court of Appeal held that there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial. The factual issues would be the father’s intention in publishing the book, the level of harm which the child was likely to suffer and the cause of such harm. The main opinion held that the action under Wilkinson v. Downton was not limited to false or intimidatory statements. In a concurring judgment Jackson LJ said that for a statement to give rise to liability under Wilkinson v. Downton it need not be false. Rather, it must meet the essential characteristics that “the statement is unjustified and that the defendant intends to cause or is reckless about causing physical or psychiatric injury to the claimant”. Jackson LJ considered that the following facts were sufficient to establish that the claimant had a good prospect of success for the purposes of granting an interlocutory injunction:

1. i) The book contained graphic descriptions of the abuse which the appellant had suffered and his incidents of self-harm.
2. ii) Those passages were likely to be quoted by reviewers or newspapers who serialised the book.

iii) On the uncontradicted expert evidence those passages were likely to cause psychological harm to the claimant.

1. iv) The book was dedicated to the claimant and partly addressed to him.
2. v) The appellant knew of the risks posed to the claimant because of his vulnerabilities and had for that reason subscribed to the recital.

The Court of Appeal thus granted an interim injunction.

The Supreme Court held that the book was for a wide audience and the question of justification had to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case was that although the book was dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story. 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. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v. Downton to ban the publication of a work of general interest.

Freedom to report the truth is a basic right to which the law gives a very high level of protection. (Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934) 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. The question whether (and, if so, in what circumstances) liability under Wilkinson v. Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in the present case.

The Court of Appeal recognised that the appellant had a right to tell his story, but they held for the purposes of an interlocutory injunction that it was arguably unjustifiable for him to do so in graphic language. The injunction permitted publication of the book only in a bowdlerised version. This presented problems both as a matter of principle and in the form of the injunction. As to the former, the book’s revelation of what it meant to the appellant to undergo his experience of abuse as a child, and how it has continued to affect him throughout his life, is communicated through the brutal language which he uses. His writing contains dark descriptions of emotional hell, self-hatred and rage. The reader gains an insight into his pain but also his resilience and achievements. To lighten the darkness would reduce its effect. 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. (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 and In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697). Appeal was thus allowed and the order of Bean J restored.