Freedom to report the truth was a basic right to which the law gave a very high level of protection and it was difficult to envisage any circumstances in which speech which was not deceptive, threatening or possibly abusive could give rise to liability in tort for intentionally causing physical or psychological harm.

The Supreme Court so held in allowing an appeal by the first defendant, James Rhodes, a well known pianist, against the decision of the Court of Appeal (Arden, Jackson and McFarlane LJJ) [2014] EWCA Civ 1277 (i) to overturn the dismissal by Bean J [2014] EWHC 2468 (QB) of an application by the claimant, OPO (his 11-year-old son, suing by his litigation friend BHM), for an interim injunction to prohibit the publication of a book by the first defendant which was claimed to be likely to cause psychological harm to the claimant, who was psychologically vulnerable, because it contained graphic accounts of the sexual abuse suffered by the first defendant as a child at school and its effects, and (ii) to grant the interim injunction sought, pending the trial of the action against the first defendant and the second defendant publishers, Canongate Books Ltde .

BARONESS OF RICHMOND HALE DPSC and LORD TOULSON JSC (with whom LORD CLARKE OF STONE-CUM-EBONY JJSC and LORD WILSON JJSC agreed said that the order made by the Court of Appeal for an interim injunction was novel in two respects. The material which the father was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raised important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton [1897] 2 QB 57. Wilkinson v Downton recognised that wilful infringement of the right to personal safety was a tort. It had three elements: a conduct element, a mental element and a consequence element. The conduct element required words or conduct directed towards the claimant for which there was no justification or reasonable excuse. The Court of Appeal had treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In that respect it had erred. The book was for a wide audience and the question of justification had to be considered accordingly, not in relation to the claimant in isolation. The Court of Appeal had held that there could be no justification for the publication if it was likely to cause psychiatric harm to the claimant. That approach excluded consideration of the wider question of justification based on the father’s legitimate interest in telling his story to the world at large in the way in which he wished to tell it, and the corresponding interest of the public in hearing his story. When those factors were taken into account, as they had to be, the only proper conclusion was that there was every justification for the publication. Freedom to report the truth was a basic right to which the law gave a very high level of protection. It was difficult to envisage any circumstances in which speech which was not deceptive, threatening, or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth was justification in itself. That was not to say that the right of disclosure was absolute, for a person might owe a duty to treat information as private or confidential. But there was no general law prohibiting the publication of facts which would cause distress to another, even if that were the person’s intention. A right to convey information to the public carried with it a right to choose the language in which it was expressed in order to convey the information most effectively. The problem with the form of the injunction was that it defined the information which it was forbidden to publish by the descriptive quality of being “graphic”. What was sufficiently “graphic” to fall within the ban was a matter of impression. The amplification of “graphic” as meaning “seriously liable to being understood by a child as vividly descriptive so as to be disturbing” similarly lacked the clarity and certainty which an injunction properly required.

The conclusion that the publication of the book was not within the scope of the conduct element of the tort was enough to decide the case. However, the issue of the mental element required for the tort had been argued and it was right to address it. The Court of Appeal found that the necessary intention could be imputed to the first defendant since he was aware of the psychiatric evidence about the harm which the claimant would be likely to suffer if he read some of the contents of the book. The court could not be criticised for doing so, since it had been bound by previous decisions which upheld that approach, in particular, Janvier v Sweeney [1919] 2 KB 316 and Wong v Parkside Health NHS Trust [2003] 3 All ER 932. There was a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law was a vestige of a previous age and had no proper role in the modern law of tort. The doctrine had been created by the courts and it was high time to declare its demise. There was no basis for supposing that the father had an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant. Accordingly, there was no arguable case that the publication of the book would constitute the requisite conduct element of the tort or that the first defendant had the requisite mental element.

LORD NEUBERGER OF ABBOTSBURY PSC gave a concurring judgment.