Matriz FODA

Based on the inextricably conceptual relationship between the reputation and private life, such overlapped interests could be alternatively, but indirectly, protected under both libel and MOPI cause of action. Defamation law was developed to protect against those imputations related to personal attributes that are not only grounded in reputational injuries but also in transgressing the claimant’s privacy. 292 _{False privacy, or false private information,}

290 _Ibid.

291 _{Application no. 11257/16 (ECHR, December 2018) at 81.}

292 _{Thornton v Telegraph Media Group Ltd (No 2) [2010] EWHC 1414 (QB); [2010] EMLR 25 [33]; Eric}

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brings the overlap between defamation and privacy from merely a conceptually unavoidable interaction to a problematic materialistic overlap. This section goes on to explain how both torts materially overlap within the English jurisdiction. The role of defamation law in protecting the individual’s privacy and the role of privacy law to protect the individual’s reputation is consecutively examined. The final sub-section examines the area of false privacy that constitutes this dissertation’s main research topic.

The protection of privacy under defamation law

In order to determine the meaning of imputations, defamation law developed three tests. An imputation is deemed defamatory if: the words tend to lower the plaintiff in the estimation of right-thinking members of society generally, 293 _{the imputation exposes the}

claimant to hatred, ridicule, or contempt because of some moral discredit, 294 _{or it is liable to}

make the claimant shunned and avoided. 295 _{The claimant is thus entitled to protect her}

tarnished reputation once the (presumably false) published statement corresponds to one of the above criteria by bringing defamation proceedings. 296 _{However, it is arguable that the}

foundational principle underpinning the tests for ridicule and avoidance respectively is the claimant's privacy or dignity rather than their reputation. 297

Publications exposing individuals to ridicule are defamatory since they diminish their sense of self. 298 _{Arguably, the harm caused by such publications constitutes a dignitary injury,}

293 _{Sim v Stretch [1936] 2 All E.R. 1237, 1240}

294 _{Parmiter v Coupland (1840), 151 E.R. 340, 341-342.}

295 _{Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934), 50 T.L.R. 581, 58}

296 _{Andrew Scott, ‘Reform of Defamation Law in Northern Ireland: Recommendations to the Department of}

Finance’ (2016) LSE Research Online

http://eprints.lse.ac.uk/67385/1/Scott_Reform%20of%20defamation%20law_2016.pdf accessed 30 January 2019.

297 _{Descheemaeker, (n 97).}

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or injury to the individual’s self-esteem, and thus undermine privacy rather than reputation. Extending this line to its logical conclusion it would arguably be inappropriate to use the defamation law, traditionally designed to protect reputational interest, when protecting and vindicating the right to privacy. 299 _{By applying the same procedure to the test of shunning} and avoiding, a similar outcome could be derived from it. In such a scenario, the individual subject to imputations of insanity and shameful diseases does not bear the burden of moral responsibility and thus such imputations, in fact, violate the applicant's privacy instead of her reputation. 300 _{The absence of direct protection to the right to privacy within English law-}

prior to the landmark case of Campbell- has been used to justify the figurative inclusion of non-reputational considerations (privacy) into the realm of defamation. 301 _Furthermore,

protecting privacy under defamation law could result in unjust consequences for the claimant and would be significantly inconsistent with that principle of the right of privacy because in the course of the exercising truth defence, the individual's private information is rendered publicly accessible since truth constitutes a complete defence in defamation. 302

Tugendhat J recognised the occasional protection of privacy within the realm of defamation in Thornton v Telegraph Media Group Ltd. 303 _{There, his justice recognised that}

(personal) defamation triggered by imputations to individuals of personal, involuntary attributes which in themselves attract no moral discredit (such as shameful diseases) 'are now

299 _{Ibid. 156; Descheemaeker, Ibid.} 300 _{Descheemaeker, (n 97).}

301 _{In LNS, (n 28) Tugendhat J used this justification to explain the overlap between defamation and privacy}

actions ‘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 were said to be defamatory even though it related to matters which were involuntary e.g. 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’; Descheemaeker, Ibid.

302 _{Descheemaeker, ibid.} 303 _{Thornton (n 63).}

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likely to be brought under the misuse of private information, although that will not necessarily or always be the case'. 304 _{Nevertheless, his justice did not deny the reputational harms}

caused by personal defamation since such statements invariably affect ‘in an adverse manner the attitude of other people towards [the applicant]’. 305 _{This case indicates, alongside with}

Strasbourg’s jurisprudential attitude, the conceptual and material interaction (overlap) between reputation and privacy, that protect the latter within the former proceedings, and opens also, as we explain below, the door to protect reputational harm within privacy law in English jurisdiction.

The protection of reputation under privacy law

As explained previously, MOPI may be utilized as a means of protecting the individual's reputation, in addition to what is commonly understood as privacy, precisely because reputational harms can be included within the scope of privacy's realm. The first judicial recognition of reputational harms within a privacy case occurred in Hannon v NGN 306 _when

Mann J refused the defendant’s argument that defamation law should only protect damage to reputation. The judge refused to draw a hard line between the realm of privacy and reputation on the grounds that there would almost certainly be some reputational harms caused by a clear invasion of privacy, whilst such reputational harms cannot be adequately protected under defamation law due to the availability of truth as a complete defence. 307

Mann J used the example of a publication revealing medical records, the nature of which caused embarrassment to the applicant, where no dimension of public interest lay within such disclosure. Such publication, in respect of details the claimant had reasonably to be kept

304 _{Ibid. [35].} 305 _{Ibid. [29 & 35}.}

306 _{[2014] EWHC 1580 (Ch)} 307 _{Ibid. [29].}

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private, constitutes a clear invasion of privacy and causes damage to the individual’s reputation. 308

It would be instructive to consider here Tugendhat J's distinction between personal and business defamation. Personal defamation caused by imputations of specific personal and involuntary attribute attracting no moral discredit, such as shameful disease, is likely to be brought under privacy law (MOPI) on the grounds that the domain of health information falls primarily within the right to privacy. 309 _{Both Tugendhat J and Mann J thus utilize the}

same example but approach it from parallax points. Tugendhat J focused on the defamation of the person caused by the publication of medical records whereas Mann J focused upon the breach of privacy caused by such publication. It is clear to say that such publication could simultaneously cause damage to the individual's privacy and reputation interests. Based on this reasoning, Mann J's conclusion that reputational harms could be caused by privacy invasion is logically sound because empirically verifiable damage to reputation could be caused by publishing personal information (medical information). Eric Barendt displayed scepticism about the authoritative ruling of Hannon v NGN regarding the capacity of privacy law to protect reputational harms because Mann J's decision was made regarding the defendant's application to strike out the actions at a preliminary stage rather than a full trial.310 _{Nonetheless, this argument may not substantively challenge Mann J’s overarching}

conclusion that damage to reputation could be one of the elements subsumed under damages awarded in privacy law, and hence that the claimant should be free to instigate

308 _Ibid.

309 _{Thornton (n 35) [29].}

310 _{Eric Barendt,’ An overlap of defamation and privacy?’ (2015) 7 Journal of Media Law, 85, 86; it is well}

interesting to indicate that this claim has been settled outside the court after the defendant’s admission of wrongly breaching the claimants’ privacy right under the article 8 rights according to the statement in open court no. HC13A02048 cited in https://inforrm.files.wordpress.com/2015/07/hannon-v-ngn-comm-of-pol-sioc.pdf

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defamation proceedings, privacy proceedings, or both actions where an overlap between defamation and privacy exists. 311

Four years later, in August 2014, Mann J had another opportunity to reinstate his position towards the relationship between privacy and reputation, this time at a full trial. Mann, J found the leading broadcasting channel BBC liable for invasion of Sir Cliff Richard's right to privacy in respect of the defendant's coverage of the raid of police over the claimant’s house. 312 _{Mann J awarded the claimant £210,000 in general damages (£190,000 in}

compensatory damages, and £20,000 in aggravated damages) relating to the invasion of privacy. 313 _{The loss of the claimant’s reputation constituted one of the factors based upon}

which damages were assessed; others included distress, damage to dignity, damage to health, and loss of control over the use of private information. 314 _{Mann J rejected the defendant’s}

argument that reputational harms fall solely within the province of defamation since ‘it is therefore quite plain that the protection of reputation is part of the function of the law of privacy as well the function of the law of defamation’. 315 _{Controversy emerged among}

scholars in respect of Mann J’s stance towards the relationship between privacy and reputation despite such approach is potentially reconcilable with Strasbourg approach. 316

Hence, Paul Wragg argues that conflating reputational concerns with privacy harms in order to remedy the perceived deficiencies in defamation law would result in egregious chilling effects on press freedom because it could be deprived from the protection offered under

311 _{Barendt, Ibid. 90.}

312 _{Cliff Richard v BBC [2018] EWHC 1837 (Ch)} 313 _{Ibid. [358 & 453].}

314 _{Ibid. [350] A.} 315 _{Ibid. [345].}

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defences in defamation law. 317 _{This view, however, may be unjustified because both privacy}

and reputation are aspects protected under Article 8 ECHR that should be equally treated and valued with the conflicting freedom of expression protected under Article 10 ECHR. 318

Freedom of expression should not have free licence over reputational interest and a reconsideration of the truth defence may be needed in light of Strasbourg’s jurisprudence on Article 8 ECHR. 319 _{Furthermore, Mann J’s approach is endorsed by the decision of the}

Supreme Court in Khuja v Times Newspapers Ltd. 320 _{In this case, the Supreme Court ruled}

that reputational harms could be subsumed within the harms protected in privacy law because the concept of privacy has a wider capacity to subsume reputational interest. 321

False privacy (false private information)

In what represented a key development in privacy law, judicial recognition of what is called false privacy exposed potential difficulties relating to the interactions between the defamation and privacy torts. The concept of false privacy refers to claims in which the claimant reveals the falsity of the private information or refuses to comment on its truth or falsity.322 _{In the English jurisdiction, it is well established that the dichotomy of truth and}

falsehood constitutes an irrelevant issue under privacy law. Once the information is formally private, it could be protected under privacy law (MOPI) regardless whether it is true, false or

317 _{Thomas Bennett and Paul Wragg, ‘Was Richard v BBC correctly decided?’ (2018) 23 Communications Law,}

151, 155.

318 _{Ibid. 160.} 319 _{See chapter 5.} 320 _{[2017] UKSC 49.}

321 _{This matter will be widely discussed in the chapter 7.}

322 _{Chris Frost, Journalisms Ethics and Regulation, (3}rd _{edn, Preason Education Ltd 2011) 103; J John Hartshorne,}

‘An appropriate remedy for the publication of false private information’ (2012) 4 JOML 104; The Press

Complaints Commission: Annual review 2005,

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mixed information. 323 _{In McKennitt v Ash,} 324 _{the court decisively included the issue of falsity}

within the scope of MOPI. In this case, the claimant Loreena McKennitt, a known folk musician from Canada, claimed that the first defendant Niema Ash, the claimant’s ex-friend, had published a book containing personal and confidential information. This included details about the claimant’s personal and sexual relationships, her personal feelings towards a deceased fiancé, her health, and her diet. The claimant argued that publication of these details constituted a breach to her privacy and confidence, and she sought a declaration to this end along with an injunction and damages. 325 _{The court’s initial ruling found that the}

claimant had a reasonable expectation to keep this information private and confidential. It thus ordered an injunction to restrict further publications of the same or similar information and awarded the claimant damages for her hurt feelings and distress. 326 _{The Court of Appeal}

upheld the initial judgement and dismissed the defendant’s appeal. 327 _{The Court rejected the}

defendant’s argument, namely that privacy claims should not be brought regarding false statements, on the grounds that falsity should fall within the field of defamation law. When determining the scope of MOPI Longmore LJ emphasised that truth or falsity are irrelevant concepts.328

The judicial affirmative approach towards false private information was also reaffirmed in P v. Quigley. 329 _{In this case, the defendant, Mark Quigley was permanently}

restricted from publishing any information related to the claimants’ sexual and private conducts, behaviours, thoughts or desires within the defendant’s new novel in which the

323 _{McKennitt (n 12) [86]; P v Quigley [2008] EWHE 1051 (QB) [6].} 324 _{McKennitt v Ash [2005] EWHC 3003 (QB).}

325 _{Ibid. [3].}

326 _{Ibid. [159] & [162].} 327 _Ibid.

328 _{McKennitt (n 12) [86]; Ferdinand v MGN Ltd [2011] EWHC 2454 (QB); Goodwin, (n 154) [92].} 329 _{P v Quigley (n 303).}

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claimant appears disguised. Eady J found that publication of sexual activities, regardless of their truth or falsity, could be harmful and thus constitute an unacceptable infringement of the claimant's rights under Article 8 ECHR. 330 _{In Cooper v Turrell,}331 _{Tugendhat J also}

reiterated the same approach and decided that under MOPI the unauthorised publication of private information may breach an individual's privacy, irrespective whether the information was true, false or mixed. In this case, the claimants, a public company and its executive chairman Mr Cooper, successfully sought an injunction, delivery up and damages through three related actions of libel, breach of confidence and MOPI. As far as MOPI was concerned, Tugendhat LJ decided that the claimant, Mr Cooper, was entitled to damages once his privacy rights had been invaded by the unlicensed dissemination of his private information. This violation applied whether the private information could be verified as being completely or partly true or false. 332

Such an expansive approach to privacy is consistent with the justification of privacy protection seeking to protect the individual dignity, autonomy and control of individuals’ private information. 333 _{Judged within in the context of confidentiality and privacy, it is}

apparent that falsity should not constitute an obstacle to the protection of information once it is related to personal and private life. Dignitary interests can still be injuriously affected by disseminating false information. 334 _{The core purpose of privacy rights is to protect the}

claimant’s right to control the disclosure of her private information, namely the ability to

330 _{Ibid. [6].}

331 _{Cooper v Turrell [2011] EWHC 3269 (QB)} 332 _{Ibid. [102].}

333 _{Tanya Alpin, ‘The relationship between breach of confidence and the tort of misuse of private information’}

(2007) 18 King’s Law Journal 329, 333-5.

334 _{Tanya Aplin & al., Gurry on Breach of Confidence: The Protection of Confidential Information (2}nd _{edn, OUP}

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decide whether, when and to whom such information ought to be revealed. 335 _{Such an ability}

is logically affected by unauthorised disclosures of private information, regardless of whether the disclosed information is true or false. Furthermore, privacy can be breached by disclosing false private information because the truth is technically not a defence in privacy action. The nub of privacy lies within its protection of information's intrinsically private nature; hence, its truth or falsity has no valence within the realm of privacy. 336

Such a judicially-driven development, however, situated the defamation and privacy torts in conflict with each other since the former operates on the dichotomy of truth and falsity. 337 _{False, private and defamatory information could be protected not only by}

defamation law, but also now by privacy (MOPI). Conversely, true information, if private, may be protected by privacy law; but not by defamation law, since there is no legal wrong in telling the truth about an individual. 338 _{The capacity of privacy law to protect false private}

information was an expropriating manoeuvre by MOPI, upon the territory of defamation. 339

This thesis, however, endorses this development and argues that the dichotomy of truth/falsity may not prevent the occurrence of the overlap between defamation and privacy torts since their protected interests, reputation and privacy, are conceptually intertwined.

335 _{Descheemaeker, (n 97); Hugh Tomlinson QC,’ Defamation and False Privacy, some thoughts’ (The}

International Forum for Responsible Media Blog, 14 December 2010)

https://inforrm.wordpress.com/2010/12/14/opinion-defamation-and-false-privacy-hugh-tomlinson-qc/ accessed 1st _{July 2017}

336 _{McKennitt (n 12); Samuel Warren & Louis Brandeis,’ The Right to Privacy’ (1890) 4 Harvard Law Review}

193,218.

337 _{Rolph, (n 13) 475.} 338 _Ibid.

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3. 3: The theoretical framework

This section explores the theoretical framework based upon which the research questions of this thesis are analysed. It encompasses a variety of perspectives that may enrich the analysis of the overlap and it impact on defences, interim injunction and damages.