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Privacy and reputation
By Steven | November 11, 2009
Two interesting developments in the tug-of-war between privacy and defamation.
The first comes in a UK injunction case. Justice Tugendhat granted an injunction to a celebrity of some sort (or at least, someone with “some public reputation”) restraining the publication of information about his encounters at his home with a prostitute some ten years ago. (It seems she essentially blackmailed him about it a couple of years later, and he paid her off to keep mum. Looks like she’s back for another round. Of money, that is.)
The injunction is an interim one. Justice Tugendhat is a the author of a leading text on privacy and confidentiality, and didn’t seem troubled by the apparent extension of the dicta in Theakston about transitory arrangements in brothels not really being the stuff of reasonable expectations of privacy. (To be fair, as he points out, Theakston didn’t involve an encounter at home, and there was no written agreement there).
What did trouble him, though, was that he might be permitting the plaintiff to make an end-run around the rules that make it very difficult to get an injunction in defamation cases. Some of the material might be defamatory, he said. And some of it might be true…
I am concerned as to whether the claim in this case is properly to be regarded as a claim to protect the applicant’s privacy, or whether it is a claim to protect his reputation.
I find this reasoning weird. Almost all privacy cases involve defamatory material – in the sense that people are likely to think less of the plaintiff if they hear about it. That’s usually why the plaintiff wants them left private. That means, too, that almost all privacy cases are about reputation. And that they’re usually about things that are true. But that doesn’t mean that they’re about defamation.
This case seems peculiarly not about defamation. According to Justice Tugendhat’s logic, pretty much every privacy case will fall under the rule in Bonnard v Perryman that injunctions won’t be granted in defamation cases if the defendant is going to plead truth.
I think there certainly are cases where a plaintiff is really trying to circumvent Bonnard and set the case up in privacy or confidentiality when in reality it’s a defamation case. But asking whether the case is “really about reputation” doesn’t distinguish between the two. I’m inclined to think that asking “is this really about the plaintiff trying to stop the publication of information that’s about his reputation and false?” is nearer the mark.
Justice Tugendhat decides that it looks like a genuine privacy case and grants the interim injunction, but leaves it open to debate at a later stage in the proceedings, which seems like a good outcome.
The case comes shortly after the European Court of Human Rights has really nailed its colours to the mast on whether privacy protects reputation. It does. That’s so, even though the provision in the European Convention on Human Rights is all about “respect for private and family life, home and correspondence”.
Now, I think it’s a bit of a stretch to have that cover a general right to reputation. Reputation is, after all, explicitly mentioned in Article 10, but not in Article 8, which deals with privacy. Here’s their logic, from paras 33 and 35:
…the Court reiterates that “private life” extends to aspects relating to personal identity, such as a person’s name or picture, and furthermore includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”…
The Court considers that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”.
The Court went on to hold that the State has a positive obligation to protect reputation, including through the courts. It concluded that the applicant’s “privacy” rights had been violated by the courts when they did not uphold his defamation claim. (I won’t go into the facts, but will note that two judges dissented, arguing powerfully, I think, that the defamation claim was rightly rejected. Still, both judges accepted that the privacy clause protects reputation).
My overall impression is that this is not a privacy issue, and trying to shoehorn reputation into privacy this way seems wrong.
What does this mean for NZ law? Not much, I think. It may affect the development of UK law and trickle into our jurisprudence that way. But our Bill of Rights contains no express privacy clause.
Topics: Defamation, Injunctions, Internet issues, NZ Bill of Rights Act, Privacy tort | 1 Comment »
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November 27th, 2009 at 6:20 pm
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