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11 03 2010

In an earlier post we discussed the concept of “false privacy”: disclosing

private information which, although in fact untrue remains private. We pointed out that the actionability
of such publications is well established in French privacy law – going back to the case of Bardot v Ici
Paris (TGI Paris, 1st Chamber, 28 March 1984) where the actress recovered damages in respect of a false
story of a suicide attempt.

The case law of the European Court of Human Rights has, of course, been strongly influenced by the
French approach and in cases where domestic defamation claims are in issue the Court often deals with
true and false allegations as part of the same analysis – thus running together what, in domestic law, were
conventionally regarded as watertight separate categories – complaints about false information (dealt with
by means of defamation actions) and complaints about true information (dealt with by claims for breach
of confidence). For example, in Standard Verlags GmbH v. Austria (Judgment of 4 June 2009) the press
had published an article concerning the marriage of the then Federal President and, in particular, a rumour
that his wife was about to leave him. The allegations were, apparently, largely false and were also
defamatory (double adultery). However, the Court approached the case from a “privacy” perspective,
holding that the publications were an unjustified interference with private life.

In English law the doctrine of “false privacy” allows a claimant to bring proceedings for misuse of private
information even where the “information” is, in fact, false (see McKennitt v Ash ([2006] EWCA Civ
1714; [2008] QB 73). There is, therefore, a potential overlap between privacy and defamation. In Terry
v Persons Unknown [2010] EWHC 119 (QB) Mr Justice Tugendhat expressed the view that privacy and
defamation only overlap in a limited class of cases. He identified four, there being no difficulty in the first
three groups of cases:

“The first group of cases, where there is no overlap, is where the information cannot be said to
be defamatory (eg Douglas v Hello!, and Murray). It is the law of confidence, privacy and
harassment that are likely to govern such cases. There is a second group of cases where there
is an overlap, but where it is unlikely that it could be said that protection of reputation is the
nub of the claim. These are cases where the information would in the past have been said to be

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defamatory even though it related to matters which were involuntary eg disease. There was
always a difficulty in fitting such cases into defamation, but it was done because of the absence
of any alternative cause of action. There is a third group of cases where there is an overlap,
but no inconsistency. These are cases where the information relates to conduct which is
voluntary, and alleged to be seriously unlawful, even if it is personal (eg sexual or financial).
The claimant is unlikely to succeed whether at an interim application or (if the allegation is
proved) at trial, whether under the law of defamation or the law of privacy”.

It was, he suggested, in the fourth group of cases, where potential problems could arise. These are cases

“where the information relates to conduct which is voluntary, discreditable, and personal (eg
sexual or financial) but not unlawful (or not seriously so). In defamation, if the defendant can
prove one of the libel defences, he will not have to establish any public interest (except in the
case of Reynolds privilege, where the law does require consideration of the seriousness of the
allegation, including from the point of view of the claimant). But if it is the claimant’s choice
alone that determines that the only cause of action which the court may take into account is
misuse of private information, then the defendant cannot succeed unless he establishes that it
comes within the public interest exception (or, perhaps, that he believes that it comes within
that exception)”. [96]

In this fourth class of case a claimant is complaining about information that is private and discreditable but
false In these cases, Mr Justice Tugendhat pointed out that if false defamatory information was published
then the defendant has, in English, a complete defence of justification or truth

“The point in relation to Justification is that the defendant is free to say anything that is true,
however harmful or distressing even if there is no public interest or public benefit. See Lord
Denning MR’s statement in Fraser v Evans [1969] 1 QB 349, 360-1, and the citation by Lord
Nichols from Littledale J, set out below. But I note that the harshness of this rule has been
tempered by the recent development of the law against harassment. Reputation is an Art 8
right. So the argument is that English law requires reform along the lines of what was
recommended by The Select Committee of the House of Lords on the Law of Defamation in
1843. The Committee recommended that the defendant who pleads justification should also
have to establish “it was for the benefit of the community that the words should be spoken”. Or
there is the model of French law, which has imported from Arts 8 and 10 the concepts of
legitimate aim and proportionality. In the case of a defence of justification, the reputation of a
successful claimant can be vindicated by an award of damages if the words are not true. In the
case of a successful defence of common law and statutory qualified privilege, a claimant has
no means of vindicating his reputation at all. It is not just that damages are not an adequate
remedy: there is no remedy in damages and no declaration of falsity” [80].

In other words, if the claimant said that a “private” allegation is true he can make a claim for misuse of
privacy information but, if he says it is false, he will be precluded from make a privacy claim at all and be
obliged to sue for defamation.

If this analysis is correct it would mean that the doctrine of “false privacy” is limited to “private
non-defamatory information”. Thus if a media organisation threatened to publish information that
someone has, say, had a brain tumour and that he had syphilis which he had caught from a prostitute then
he could sue for misuse of private information in relation to the former, whether it was true or false, but in
relation to the latter only if it were true. It is difficult to see why this distinction should matter. It might
be said that, in the one case the “interest” in play was “privacy”, whilst in the other it was “reputation”.
However, from a Convention point of view, both are Article 8 rights and there is no “bright line”
distinction between them.

Mr Justice Eady considered this point in the context of the “rule in Bonnard v Perryman” in his recent
City University Lecture (see our post here, the lecture is also on the Judiciary website, here). He raised

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the question as to

“why a different test should be applied to reputation cases from that laid down by Parliament
for those concerning protection of privacy. What is the reason why it is, and should remain,
more difficult to obtain an injunction to protect reputation than to protect another aspect of
human dignity and autonomy, even though both are covered by Article 8? It may prove to be a
sufficient answer as a matter of public policy that, in the case of defamation, damages are
more often likely to provide an adequate remedy, whereas in privacy cases they are not. But
the question at least needs to be thought about”

We agree. This is a topic for a future post.

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Date : March 11, 2010

Categories : Legal, Privacy

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