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


• Date : January 9, 2011

Jane Clift



(2)



Quote: The right to reputation falls within the scope of Article 8 and was engaged, and the Council were accordingly bound to respect it unless its interference with it (namely the publication of the Email and VPR) could be justified under Article 8(2). As to the Council’s argument that this would create immense practical difficulties for local authority officials required to make an individual assessment of the propriety of each and every proposed publication, Ward LJ concluded: “Ill-considered and indiscriminate disclosure is bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly have the need to know or those reasonably thought to be at risk can outweigh the substantial inference with the right to protect reputations. In my judgment the judge’s ruling on proportionality is beyond challenge. To publish as widely as the Council did was to breach Ms Clift’s Article 8 rights. [35] …If the Council were in breach of Article 8, it would be unlawful to publish the information. If it was unlawful to publish the information, then the Council’s duty was not to publish. If the duty was not to publish, the Council could no longer claim to be under a duty to impart the information to those who did not need to know it. Not being under a duty to publish, the foundation of the claim to qualified privilege falls away. [36]” The question was therefore whether or not the Council had a duty to publish the material as widely as it had done. Answering this question required consideration of the proportionality of the Council’s actions. The Court of Appeal agreed with the judge that the decision to publish the material about the claimant as widely as the Council had done was disproportionate and dismissed the appeal. The remainder of the Council’s arguments were swiftly disposed of. The Court of Appeal held that the Judge had not failed to take into account the Article 8 rights of the publishees since any risk to them was not significant enough to engage Article 8. Nor did Ms Clift’s case invoke Convention rights to create a new ‘defence’ (an approach that had been rejected by the House of Lords in Van Colle v Chief Constable of Hertfordshire Police ([2008] UKHL 50) in the context of common law negligence claims against the police). The argument that Ms Clift should have been confined to bringing a freestanding claim under the HRA for breach of her Convention rights was also rejected on the basis that damages under the HRA are less generous than damages in defamation claims and in any event the effect of section 6 of the HRA upon the Court as a public authority required to act compatibly with the Convention, was to require the Court to tackle the issue head on. An number of points arise out of the decision in Clift. First, it is clear that a local authority’s HRA obligations condition the circumstances in which the authority will be able to invoke the defence of qualified privilege in a defamation claim: the defence will not be available if the claimant’s Convention rights were engaged and the decision to publish the defamatory material constituted a disproportionate infringement of those rights. Public authorities must therefore think even more carefully before circulating potentially defamatory material amongst “interested” parties. Second, does it mean that all public authority defences to defamation claims must pass the proportionality test in order to succeed? Third, does this approach extend to affect the availability to a public authority of defences to other causes of action where a claimant’s Convention rights are engaged. If not, why not? Fourth and finally, the decision gives rise to important questions about the impact of Convention rights in claims between private individuals – the so-called “horizontal effect” issue. In relation to misuse of private information, Lord Nicholls in Campbell v MGN Ltd ([2004] UKHL 22) stated that: “The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” [17]. The decision in Clift brings the issue of whether Article 8 will begin to infuse the defence of qualified privileged in cases brought by one private party against another in to sharp focus. This raises the spectre of proportionality decisions being taken on the newsroom floor. Whilst journalists and editors already have to deal with these issues in the privacy context, the prospect of having to do so in relation to defamation issues as well is likely to send a chill down the spine of the media, many sections of which are already convinced that English libel laws are excessively claimant-friendly. Of course the Court of Appeal in Clift did not seek to answer (or even ask) any of these questions. And on one view, Clift does little more than follow the well trodden path whereby the Convention is used to afford strong protection to the interests of individuals in defamation cases involving public authorities (see Derbyshire County Council v Times Newspapers [1993] AC 534). Yet it is difficult to see how an argument of logic and/or principle for confining it in this way would be formulated. Doubtless the courts will soon face some of the above questions. And, as the case law in the privacy arena has shown, the consequences of the courts doing so are potentially far reaching indeed.



From:

http://inforrm.wordpress.com/2011/01/09/case-...r-and-edward-craven/

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