Organized stalking ?

Case Law: “Clift v Slough Borough Council – Qualified Privilege meets Article 8″
Lorna Skinner and Edward Craven

• Date : January 9, 2011


Jane Clift


( 1)



Quote: The influence of Article 8 of the European Convention on Human Rights on the law of breach of confidence and the development of a domestic tort of “misuse of private information” has been well documented. By contrast, the influence of Article 8 upon the law of defamation has been much less pronounced. Just before the Christmas break, however, the Court of Appeal handed down judgment in Clift v Slough Borough Council ([2010] EWCA Civ 1484). In Clift the Court of Appeal grappled with the issue of how, if at all, the Human Rights Act 1998 (“HRA”) has affected the availability of the defence of qualified privilege to public authorities in defamation cases. The Court concluded that the HRA has had a profound affect. Since a public authority is required (by virtue of section 6 of the HRA) to act compatibly with Convention rights, and since the right to reputation is protected by Article 8, any publication that interferes with that right must be justified as necessary and proportionate to a legitimate aim under Article 8(2). Furthermore, there can and will be no defence of qualified privilege where a public authority has acted incompatibly with its public duties under the Convention, – in this case, where the interference with an individual’s Article 8 rights could not be justified under Article 8(2). In ruling in favour of an approach that accords primacy to a public authority’s HRA obligations, the Court has not only laid down an important marker about the role of Article 8 in future libel cases involving public authority defendants and the defence of qualified privilege, but also in relation to the availability of other defences to such defendants. The case also raises interesting questions about the future development of the law as between private individuals given the potential horizontal effect of section 6 of the HRA. The decision is therefore of interest to libel lawyers, administrative law practitioners and public authorities alike. The Claimant, Jane Clift, had brought a libel claim against Slough Borough Council (“the Council”) and its Head of Public Protection arising out of the publication of the Council’s Violent Persons Register (“VPR”) which named her as a person who posed a “medium risk” of violence following an incident described as “threatening behaviour on several occasions”. Although no incident of violence had ever taken place, Ms Clift had made a number of comments about a particular employee of the Council in communications with it that were treated as constituting credible threats of violence. As a result it was decided to add Ms Clift’s name to the VPR. An email headed “Violent Persons Register – Ms Jane Clift” and attaching the VPR (“the Email”), was sent by the Head of Public Protection to 54 individuals who were officers or employees of the Council with a further 12 hard copies to be circulated to 12 Council Community Wardens, bringing the total number of publishees of the email to 66. Copies of the VPR were also sent to several external “Partner Organisations that provide a service on [the Council’s behalf]” including organisations providing refuse collection and road sweeping services, maintenance on Council-owned properties and estates, the NHS Primary Care Trust and about 50 business members of the Community Safety Partnership. Evidence was given at the trial that the VPR would have been circulated to not more than 150 people. The Council relied on defences of justification and qualified privilege to which Ms Clift responded with a plea of malice. At trial, the jury rejected both the defence of justification and the plea of malice. In relation to qualified privilege, Tugendhat J ruled ([2009] EWHC 1550 (QB)), in relation to publication of both the email and the VPR that publication to employees of the Council who were “customer facing staff” that may come in to contact with Ms Clift was protected, but that publication to employees in other council departments or to any external “partner organisations”, was not, since it was not reasonable to conclude that any risk existed to those individuals. Publication to those employees and organisations was not proportionate or fair. The effect of these rulings was that the jury were directed that damages were to be assessed on the basis that the VPR was circulated to 150 people and the email to 30 people (the publication to the other 36 being protected by qualified privilege). The jury awarded Ms Clift damages of £12,000. The Council appealed. At the heart of the appeal was a tension between two well established legal principles. On the one hand there was the conventional common law concept of qualified privilege as a public policy defence designed to facilitate the uninhibited exchange of (non-malicious) communications for the common convenience and welfare of society. On the other there is the duty of public authorities to act compatibly with individuals’ Convention rights – in this case the Article 8 right to respect for private and family life, which the Court of Human Rights and Supreme Court have recognised as including a degree of protection for an individual’s reputation (see In re Guardian News and Media Ltd [2010] UKSC 1). In Kearns v General Council of the Bar ([2003] 1 WLR 1357), the Bar Council had published a seriously defamatory statement circulated to all of chambers, senior clerks and practice managers in England and Wales. In upholding the defence of qualified privilege, Simon Brown LJ said that it did not matter whether one characterised the Bar Council as owing a duty to the recipients of the communications or whether the situation was characterised as one where the parties shared a common interest in maintaining professional standards. Instead, what mattered was that “the relationship between them is an established one which plainly requires the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions” [39]. The Council in Clift contended that it had an analogous “established” relationship with the recipients of the email and the VPR and that all communications with those recipients that were relevant to the discharge of its functions should therefore be protected by qualified privilege. In Wood v Chief Constable of the West Midlands Police ([2005] EMLR 20) a police officer responsible for investigating a series of car thefts had informed members of the insurance industry that the claimant’s business partner was guilty of the thefts. The business partner was subsequently acquitted of all criminal charges. The claimant then sued the police for libel, contending that the communications meant and were understood to mean that he had aided and abetted the commission of serious criminal offences. The defence of qualified privilege was struck out by the court on the basis that there was no lawful justification, let alone any duty, for the defendant to disclose the information about the claimant, the Court of Appeal holding that the performance of a public duty was relevant to the question of whether or not the defendant had a sufficient duty or interest to publish the defamatory material. Ms Clift contended that the Council, as a public authority, should only be entitled to rely on the defence of qualified privilege if it was consistent with its public law duties. Its public law duties required it to publish information only to the extent necessary for the performance of those duties and in accordance with its obligations under the HRA. Since the information published was damaging to Ms Clift’s reputation, her Article 8 rights were engaged and in consequence the Council were under a duty not to interfere with her Article 8(1) rights unless this could be justified under Article 8(2) as necessary and proportionate to a legitimate aim. Whilst it was accepted for Ms Clift that protection of Council employees and employees of partner organisations was a “legitimate aim” sufficiently important to justify interference with her Article 8 rights and that the inclusion of her name on the VPR was rationally connected to that legitimate aim, the important question, was whether or not publication to those who were not likely to be directly approached by Ms Clift was proportionate. Applying this analysis, the Judge’s rulings on qualified privilege were correct. The Court of Appeal therefore had to decide whether proof of an established, existing relationship was of itself sufficient to justify the free flow of information between the parties to the relationship (as per Kearns) or whether the absence of a public law duty to communicate deprived the public authority defendant of its defence of qualified privilege (as per Wood). The answer to this question, said Ward LJ (with whom Thomas and Richards LJJ agreed), was located in the underlying reason for the defence, which is “rooted in public policy”. The nub of the court’s reasoning on this first question can be found at [31]: “The private interest in one’s reputation is to be preferred to the public convenience of unfettered communication where there is no duty to communicate at all.” It was held that Wood was binding on the Court. Kearns was distinguished on the basis that the defendant Bar Council was not a public authority and as such was not subject to any public law duties. In the absence of a positive duty to communicate the defamatory material, the council could not simply point to the fact that it had an established relationship with all of the recipients and assert that this in itself meant that the publication was privileged. As a public authority the Council was bound to act compatibly with Convention rights for it would be unlawful not to do so.

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