In Sunday Business. In the article it was stated that the plaintiff ’s

political party was preparing, due to unpopularity, to withdraw many

of its candidates from the 1997 General Election so as to avoid humili-

ation at the polls. At trial, Buckley J held that political parties could not

maintain defamation claims. Further (and in line with the House’s

decision in Derbyshire), he justified his decision by reference to the

public interest in uninhibited expression concerning matters of politi-

cal significance. Moreover, in one other respect, Buckley J’s deci-

sion is strongly reminiscent of that reached by the House in the

Derbyshire case. He stated that, while political parties cannot bring

defamation claims, ‘any individual candidate, official or other person

connected with the party who was sufficiently identified could sue’

(p. 271). He thus established a distinction between parties (unprotected

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by defamation law) and individual candidates for office, etc., who can

bring claims on the same basis as private individuals. For the reasons

`

given above vis-a-vis the Derbyshire case, a further distinction between

candidates, etc., and private individuals will have to be drawn to bring

defamation law into line with the European Court’s jurisprudence.

While the Derbyshire and Bhoyrul cases might be taken as suggest-

ing judicial insensitivity to the requirements of the ECHR, another

group of cases create a contrary impression. They concern the law

relating to damages for defamation, and it is to an examination of

them that we turn.

20.2.5 Defamation law and damages

(a) Compensatory damages

Damages are the principal remedy for defamation (Fleming, 1998,

p. 657). Plaintiffs are entitled to damages for both reputational and

economic injury (e.g., loss of employment). Ceilings have never been

placed, either at common law or by statute, on the quantum of

damages that can be recovered in defamation actions (Loveland, 1996,

p. 193). Juries determine the sum of compensation to be awarded, and,

until recently, they were not furnished with clear guidance as to the

appropriate sum to award. This sometimes led to awards of compensa-

tion being made that were excessive (Jones, 1998, pp. 495–6). Such

awards are open to objection on at least two grounds. First, they are a

disproportionate response to a defendant’s wrongdoing and, hence,

can be regarded as unjust. Secondly, the prospect of having to pay

such a sum may exert a powerful ‘chilling effect’ on expressive activity.

Objections such as the two noted above have prompted change in

the law. In the 1960s, the Court of Appeal conferred on itself the

power to order a new trial when it considered a jury’s compensation

award so large as to be ‘divorced from reality’ (McCarey v. Associated

Newspapers Ltd (1964)). But juries continued to award very large sums

of compensation to plaintiffs. Hence, Parliament addressed itself to

this matter in the Courts and Legal Services Act 1990. Under s. 8 of

this Act, the Court of Appeal has the power, where a jury has awarded

‘excessive’ compensation, to substitute a lower sum (instead of

ordering a new trial). This power was first exercised by the Appeal

Court in Rantzen v. Mirror Group Newspapers (1993). In this case, the

Court substituted an award of £110,000 for the jury’s award of

£250,000. While the Court of Appeal based its decision on the Act of

1990, it also justified it by reference to Art. 10 of the ECHR. Neill LJ

stated that the Convention required that damages in cases such as

498 General Principles of Constitutional and Administrative Law

Rantzen should not exceed the level ‘necessary to compensate the

plaintiff and re-establish his reputation’ (p. 994). The Court of Appeal

thus staked out a position that is in line with Art. 41 of the European

Convnetion. Article 41 identifies ‘just satisifaction’ as the criterion by

reference to which damages awards should be assessed (see Wright,

2001, pp. 39–42).

At the time of the Court of Appeal’s decision in Rantzen, the ECHR

was not, of course, a feature of domestic law. Hence, one commentator

has described that decision as an ‘anticipatory invocation’ of the

Convention (Loveland, 1996, p. 193). Further, the same commentator

has identified the Rantzen decision as having been ‘vindicated’ by the

later decision of the European Court of Human Rights in Tolstoy

Miloslavsky v. UK (1995) (ibid.). This case concerned a pamphlet in

which Lord Abingdon was accused of having perpetrated war crimes.

In the domestic courts, the pamphlet was held to be defamatory and

Lord Abingdon was awarded £1.5 million. Thereafter, Tolstoy Milos-

lavsky appealed to the European Human Rights Court. It held that the

compensation sum awarded against him was a violation of his right to

freedom of expression as guaranteed by Art. 10 of the ECHR. This

was because the compensation recovered was in excess of the amount

necessary in order to re-establish Lord Abingdon’s reputation.

More recently, the Court of Appeal has staked out a position

`

vis-a-vis compensation for defamation that is in line with the stance of

the European Court in Tolstoy Miloslavsky. In John v. Mirror Group

Newspapers Ltd (1996), the Court of Appeal stated that judges could,

in defamation actions, draw a jury’s attention to the level of awards

made in personal injury cases (p. 54, per Lord Bingham MR). The

Court took this step with a view to curbing the impulse among jurors

to make excessive awards. In this connection, the Master of the Rolls

stated that ‘[a]ny legal process should yield a successful plaintiff appro-

priate compensation, that is, compensation that is neither too much nor

too little’ (p. 51 (emphasis added); see also p. 49). While this statement

coheres with the decision reached by the European Court in Tolstoy

Miloslavsky, the Appeal Court based its decision not on the ECHR

but, rather, on the common law (p. 58, per Lord Bingham). The Court

did, however, identify the Convention as ‘reinforcing and buttressing’

its decision (p. 58, per Lord Bingham). Moreover, the Court found

further support for the position it was staking out in the Australian

High Court’s decision in Carson v. John Fairfax and Sons Ltd (1993),

in which it was held that juries in defamation cases could have their

attention drawn to conventional awards for personal injuries.

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(b) Exemplary damages

In the John case, the Court of Appeal also restricted the range of

circumstances in which a plaintiff can recover exemplary or punitive

damages. The purpose of such awards is, as their name suggests, to

punish wrongdoers (p. 56, per Lord Bingham (and authority cited

therein); see also Cane, 1997, pp. 114–15). The Court stated that awards

of this sort could only be recovered where the plaintiff offers ‘clear’

proof of the two following things (p. 58, per Lord Bingham). First, the

defendant knowingly or recklessly published untruths. Secondly, the

defendant proceeded to publish the relevant untruths having cynic-

ally calculated that the profit accruing from the publication would be

likely to exceed any damages award made against him or her. As with

`

the position it adopted vis-a-vis compensatory damages, the Court

buttressed its decision by reference to the ECHR. Article 10, Lord

Bingham noted, requires that ‘[f]reedom of expression should not be

restricted by awards of exemplary damages save to the extent shown

to be strictly necessary for the protection of reputations’ (ibid. (empha-

sis added)).

The above decisions reveal considerable judicial sensitivity to the

requirements of the ECHR. So too does the House of Lords’ recent

decision in Reynolds v. Times Newspapers Ltd (2001), which concerned,

inter alia, the defence of qualified privilege. In Reynolds, Lord Steyn

stated that, ‘in considering the issues before the House and the

development of English law, the House can and should act on the reality

that the Human Rights Act 1998 will soon be in force’ (pp. 207–8; see

also Wright, 2001, p. 24). Before examining the House’s decision in

Reynolds, some general comments must be made on the defence of

qualified privilege.

20.2.6 Qualified privilege

In our earlier discussion of qualified privilege, we noted that in order

to plead this defence successfully defendants must be able to prove

(a) that they had an interest or duty (legal, social or moral) to com-

municate with another (or others) and (b) that the recipient(s) of the

material had a corresponding interest or duty to receive it ((a) and

(b) as here described correspond to the two conditions described

above). In circumstances where (a) and (b) can be proved, judges

typically characterise the defendant and the person(s) with whom he or

she has communicated as standing in a relationship of ‘reciprocity’

(see, for example, Adam v. Ward (1917), p. 334, per Lord Atkinson).

500 General Principles of Constitutional and Administrative Law

One subset of defendants who have experienced difficulty in establish-

`

ing reciprocity are newspapers vis-a-vis material communicated to

the public at large. The judiciary have long set their face against the

acceptance of a qualified privilege plea in such circumstances. This

is because they have been of the view that to accept such a plea would

be to bestow on newspapers and other media organs an open-ended

‘public interest’ defence (see Jones, 2000, p. 510). The judicial reluc-

tance to accept such a defence can be illustrated by reference to

Blackshaw v. Lord (1983). In this case, the Court of Appeal conceded

that, in some circumstances, communication to the general public may

be in the public interest. But this concession was accompanied by a

further observation. Statements did not attract the protection of

qualified privilege simply because they concerned ‘a matter of public

interest believed by the publisher to be true in relation to which he has

exercised reasonable care’ (p. 327, per Stephenson LJ; see also Faulks,

1975, paras 211–15).

In Reynolds v. Times Newspapers Ltd (2001), the House of Lords

held that qualified privilege can, in some circumstances, be pleaded

where political material is disseminated to the general public. Their

Lordships were, however, at pains to point out that such material

would not fall within an extended (or, as they termed it, ‘generic’)

qualified privilege defence (p. 200 and p. 204, per Lord Nicholls).

Rather, it would fall within the defence as described by Lord Atkinson

in Adam v. Ward (1917). This being so, their Lordships rejected the

gloss placed on the qualified privilege defence by Lord Bingham LCJ

when Reynolds (1998) was before the Court of Appeal. In the Appeal

Court, the Lord Chief Justice stated that a condition over and above

the two in Adam would have to be satisfied in order to plead qualified

privilege in the circumstances under discussion. This condition was

what Lord Bingham termed ‘the circumstantial test’ (p. 909). To satisfy

this test, defendants were required to show that ‘the nature, status and

source of the material and all the circumstances of its publication’ were

such that the publication should ‘in the public interest’ be protected

(p. 912). The circumstantial test was rejected by the House. But their

Lordships (rather equivocally) identified ‘circumstances’ as a highly

relevant consideration when determining whether qualified privilege

could be successfully pleaded. In this connection, Lord Nicholls made

the following observation: ‘[th]rough the cases runs the strain that,

when determining whether the public at large had a right to know the

particular information, the court has regard to all the circumstances.

The Court is concerned to assess whether the information was of

sufficient value to the public that, in the public interest, it should be

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Freedom of Expression and Competing Private Interests

protected by the privilege in the absence of malice’ (p. 195 (emphasis

added)). To this his Lordship added a (non-exhaustive) list of con-

siderations relevant to the question whether the qualified privilege

defence should be available: viz: (i) the seriousness of the allegation(s);

(ii) the nature of the information, and the extent to which the matter is

a matter of public concern; (iii) the source of the information; (iv) the

steps taken to verify the information; (v) the status of the information;

(vi) the urgency of the matter; (vii) whether comment was sought from

the claimant; (viii) whether the relevant publication contained the gist

of the claimant’s side of the story; (ix) the tone of the article; and

(x) the circumstances of the publication (p. 205).

The position staked out by the House in Reynolds on the appli-

cability of the qualified privilege defence to politically significant

material is open to at least two criticisms. First, in circumstances where

judges draw on the considerations listed by Lord Nicholls, they will

(where newspaper defendants are concerned) be defining standards of

good journalistic practice. It is far from obvious that this is a task that

they are well equipped to undertake. Secondly, the House’s decision in

Reynolds can be expected to engender uncertainty among newspaper

editors. This is because Lord Nicholls’ (non-exhaustive) list of relevant

circumstances embraces a wide range of factors. Moreover, the weight

or significance that should properly be attached to factors such as those

enumerated by his Lordship is not specified with any degree of pre-

cision (see p. 205). One way of avoiding such uncertainty and the

chilling effects it may generate might be to adopt the approach of the

New Zealand courts on the question whether politically significant

material should enjoy qualified privilege. In Lange v. Atkinson and

Consolidated Press NZ Ltd (1998), the New Zealand Court of Appeal

held that defendants can plead qualified privilege vis-a`-vis politically

significant material communicated to the public. As well as expanding

the qualified privilege defence, the Court also sought to forestall the

danger of chilling effects. To this end, it stated that plaintiffs must, in

order to defeat a plea of qualified privilege, prove that the defendant

lacked an honest belief in the truth of his or her statements. Further,

the New Zealand Court found support for the position it adopted in

Art. 10 of the ECHR. (The New Zealand Court of Appeal’s decision

in Lange was subsequently appealed to the Privy Council. The Privy

Council remitted the case to New Zealand for rehearing, thus affording

the New Zealand Appeal Court the opportunity to consider the House

of Lords’ decision in Reynolds (2000). While prepared to ‘amplify’ its

earlier decision, the New Zealand Appeal Court declined to follow the

House’s approach in Reynolds (2000). One of the reasons it gave for

502 General Principles of Constitutional and Administrative Law

this decision was the greater readiness of the New Zealand press, as

compared to the British press, to behave responsibly (p. 398).)

There are reasons for thinking that at least some of the 10 con-

siderations listed by Lord Nicholls could have relevance to the public

interest defence as it features in the action for breach of confidence.

Before explaining why this may be so, something must be said about

breach of confidence and invasion of privacy.

20.3 Breach of Confidence

The cause of action for breach of confidence – which has been

fashioned by the judiciary – serves to protect secrets and personal

information (Gurry, 1984, pp. 6–21). A plaintiff can secure a remedy

(damages and/or injunctive relief ) for breaches of confidence in circum-

stances where the following three conditions (which were approved

by the House of Lords in Attorney-General v. Guardian Newspapers

(No. 2) (1990)) can be satisfied:

1. The information is confidential in character: i.e., it must not be

something that is public property or public knowledge.

2. The information must have been imparted in circumstances im-

posing an obligation of confidence: e.g., it was imparted (either

explicitly or implicitly) for a limited purpose.

3. Thirdly, there must be an unauthorised use of the relevant infor-

mation by the confidant: e.g., use of the information by the con-

fidant for a purpose other than that for which it was imparted.

While protecting secrets and confidences, the law of confidentiality

also affords protection to the expression-related interests of, inter alia,

the press (in disclosure of information) and the public (in the free flow

of information) (see Toulson and Phipps, 1996, Ch. 15). In circum-

stances where the three requirements described above have been

satisfied, defendants may be able to avoid the imposition of liability by

establishing that disclosure of the relevant material was in the public

interest (Feldman, 1993, p. 438, et seq.). In order to invoke this defence

successfully, defendants must establish that the public interest served

by disclosing the relevant information outweighs the interest in

preserving confidentiality (Riddick v. Thames Board Mills Ltd (1977)).

In recent years, the judiciary have broadened the range of circum-

stances in which liability for breach of confidence can arise. Prior to

the case of Stephens v. Avery (1988), it had been thought that an

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Freedom of Expression and Competing Private Interests

obligation of confidence could only arise where there had been a pre-

existing relationship between plaintiff and defendant. The decision in

Stephens has, however, been read as supporting the proposition that

such a relationship does not have to be established in order to secure

relief. Plaintiffs can succeed in a confidentiality claim simply by estab-

lishing that the relevant information was acquired in circumstances

where a reasonable person would have realised that it was confiden-

tial. This is a test that can be used to establish breaches of confidence in

a wider range of circumstances than was the case when a pre-existing

relationship had to be established. This point can be illustrated by

reference to HRH Princess of Wales v. MGN Newspapers Ltd and

Others (1993). In this case, the defendants had no pre-existing rela-

tionship with the plaintiff. Nonetheless, the information that they

acquired concerning her (i.e., photographs of the plaintiff exercising in

a semi-public gymnasium) was held to be subject to a duty of confi-

dentiality. This was because it would have been obvious to a reasonable

person that the plaintiff did not wish the information to be obtained.

The developments described above bespeak a growing judicial

readiness to protect confidences and secrets. Hence, a basis exists for

suggesting that the judiciary may have to modify the public interest

defence described above in order to ensure that the competing interest

in freedom of expression is adequately protected.

20.4 Invasion of Privacy

Prior to the incorporation of the ECHR, no legal ground existed

for asserting an invasion of privacy claim (Malone v. Metropolitan

Police Commissioner (No. 2) (1979); Kaye v. Robertson (1991)). (Some

privacy-related interests have, however, been protected by, inter alia,

the law of confidentiality and a number of causes of action in the law

of tort, including trespass to land, private nuisance, and injurious

falsehood.) A basis upon which to bring invasion of privacy claims

is now, however, provided by Art. 8 of the ECHR. It provides, in

Art. 8 (1), that ‘[e]veryone has the right to respect for his private and

family life, his home and correspondence’. Further, Art. 8 (2) identifies

a range of considerations that serve the public interest and that can be

invoked as a basis upon which to limit or override the right enunciated

in Art. 8 (1). They include public safety, the prevention of disorder or

crime, the protection of health or morals, and the protection of the

rights and freedoms of others. Numbered among these rights is free-

dom of expression (which protects, inter alia, press freedom and the

504 General Principles of Constitutional and Administrative Law

associated public interest in the free flow of information). Article 8 (2)

also specifies that ‘[t]here shall be no interference by a public author-

ity with the exercise of [the right enunciated in Art. 8 (1)], except as is

in accordance with the law and necessary in a democratic society’

(emphasis added).

With a view to determining how effect might be given to the Art. 8

right in this country, members of the judiciary have sought guidance

from the law of a number of other jurisdictions (see, for example,

Bingham, 1998, where German law is discussed). One such jurisdic-

tion is the United States of America. In the USA, the law of tort has

been used to fashion a cause of action for invasion of privacy. On one

very influential account of US law, tortious invasions of privacy are

identified as taking four distinct forms (Prosser, 1960; cf. Bloustein,

1964). They are:

(i) Intrusion: e.g., incursions into a person’s private sphere that

outrages his or her sense of modesty and security (Fleming, 1998,

p. 666).

(ii) Appropriation of personality: e.g., the unauthorised use of a per-

son’s name or picture in aid of advertising or other commercial

purposes (Fleming, 1998, p. 668).

(iii) Disclosure of private facts: e.g., disclosure by the media of dis-

reputable incidents from the depths of a person’s past (Fleming,

1998, p. 670).

(iv) False light invasion of privacy: e.g., use of a person’s picture to

illustrate an article concerned with criminal activity with which he

or she has no connection (Prosser and Keeton, 1994, pp. 863–6).

In the account of US law summarised above, it is frankly

acknowledged that invasion of privacy can take a variety of forms.

This acknowledgement provides a basis for suggesting that those

whose task it is to define ‘invasion of privacy’ may find themselves

faced with intractable difficulties. Some support for this view can be

found in an essay by David Feldman, in which it is stated that ‘[a]ny

attempt to identify a single interest at the core of privacy is doomed to

failure’ (Birks, ed., 1997, p. 21 (emphasis added)).

The difficulty pointed up by Feldman notwithstanding, judges are

(with the coming into force of the Human Rights Act) exhibiting a

readiness to develop private law actions relating to invasions of

privacy. The Act’s impact can be illustrated by reference to two recent

cases: Douglas and Zeta-Jones v. Hello! Ltd (2001) and Thompson and

Venables v. News Group Newspapers Ltd (2001). In Douglas, Michael

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Douglas and Catherine Zeta-Jones sold the exclusive rights to publish

their wedding photographs to OK! magazine. Thereafter, Hello! maga-

zine obtained unofficial photographs of the wedding. The claimants

sought to restrain publication of these photographs. While identifying

an injunction as an inappropriate remedy on the facts, the Court of

Appeal stated (unanimously) that English law should now, in the light

of Art. 8, protect privacy. Moreover, both Keene and Sedley LJJ

recognised that private law could be developed in ways that would

serve to protect the Art. 8 right to privacy. They also identified such

development as being required by s. 6 of the Human Rights Act. This

provision, of course, places courts and other ‘public authorities’ under

a duty to act compatibly with Convention rights. Of the two judges

Keene LJ staked out the less adventurous position. He identified the

existing action for breach of confidence as affording a means by which

to protect the Art. 8 right. He was, however, unsure as to ‘[w]hether this

duty extends to creating a new cause of action’. Sedley LJ, by contrast,

entertained the possibility that a new cause of action could be fashioned