Implications of a tort of false private information on defamation

Whereas the falsity, as many authors argue, is the subject matter of defamation, there is no reason to create another cause of action to deal with publications involving false information. Brian Pillans and John Hartshorne call for a new tort of creation or misuse of false (private) information. 448 _{The scope of this action would encompass not only the publication}

of false private information but also any publication of private information in respect of which no approval was granted by the claimant whether the information were true or false.449

However, Pillans and Hartshorne also argue that such a suggestion may be redundant since there are strong similarities between publication or creation of false private information and defamation. The first similarity relates to the falsity of the information that is presumed in both causes of action. In other words, since the concept of implied falsehood is central to the claim in both actions, this may weaken the justification for creating a new action to rectify such falsity because the claimant could instead use the well-established tort of defamation to remedy harms caused by the publication of false allegations.450 _{Undermining of the law’s}

coherence is arguably one of the main consequences arising from the overlap between defamation and privacy. In order to maintain the global coherence of law, the protection of false information should be reserved to the law of defamation whose rules were established

447 _{Barendt, (n 188) 114; Iain Wilson & Brett Wilson ‘Misuse of private information’ insight (West Law, 16} January2015)https://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad69f8e0000016b61c451819cd 64fbc&docguid=I244A04109D8111E4AD578A6BF3EF978B&hitguid=I244A04109D8111E4AD578A6BF3EF978B& rank=2&spos=2&epos=2&td=71&crumb-action=append&context=68&resolvein=true accessed 22 January 2018 448 _{Pillans, (n 436); Hartshorne, (n 322) 98.}

449 _{Ibid. 100.}

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prior to the recent law of privacy. 451 _{The global coherence lens requires the recent law of}

privacy to take into account the pre-existing legal rules of the whole legal system. David Rolph argues that in order to maintain the coherence of the whole legal system, there must be an assessment of privacy’s impact upon other existing causes of action protecting dignitary rights, such as those relating to defamation. Attention is, therefore, due to avoid the subversions of the balance between interests in conflicts that underpin those actions. 452

Cheer also concurs with Rolph that the overlap between defamation and privacy would undermine the law’s coherence because of the inconsistency of interim injunction rules applied in both laws. 453 _{Cheer outlines that the recognition of false privacy would undermine}

the coherence of defamation law already protecting a claimant from the wrongful publication of false information: 454

'Proper regard for the coherence of the law suggests that a novel cause of action for invasion of privacy, in whatever form it takes, should be available only in respect of a true matter, with defamation imposing liability for false matter'.

Rolph also explains and justifies the separation between the scope of defamation and privacy on the basis of truth and falsity dichotomy: 455

‘Because its principles are designed to protect a fundamentally different legal interest, reputation, defamation law does not readily accommodate privacy protection as one of its aims or rationales. Defamation law should prevent people making false and

451 _{Rolph, (n 352)} 452 _{Rolph, ibid.}

453 _{Cheer, (n 15) 314; the differences between interim injunctions rules in defamation and privacy will be} discussed in chapter 6.

454 _Ibid.

455 _{David Rolph, ‘Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation’ (2007) 25 Communications} Law Bulletin, 5-8.

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disparaging statements about others in public; privacy law should allow individuals to control what true, but private, information about them is disseminated in public and what remains private. Any privacy protection afforded by defamation law was or should be incidental or indirect at best. The fact that recent reforms have arguably reduced or removed privacy protections from defamation law does not mean that the principles of defamation law as they now stand under the national, uniform defamation laws are somehow deficient. Properly understood, it is not the function of defamation law to protect a plaintiff’s privacy’.

The second main similarity between false privacy and defamation relates to the nature of harms caused by the publication of false information. Hartshorne argues that in both publications, whether false private or defamatory information, the harmed party would suffer similar types of harms; in other words, the claimant would experience similar distress and embarrassment. The publication of false information, under both defamation and false privacy, would lead others to form a misleading impression about the claimant’s personality.456 _{Furthermore, based on similarity with regards to the nature of the harm}

caused, Hartshorne also argues that personality harms caused by false portrayals could be effectively corrected through a judicial decision serving both compensatory and vindicatory purposes. 457 _{O'Callaghan agrees with Hartshorne about the similarity of the injuries caused}

by defamation and false privacy, but he adds that such similarities could also be recognised in comparing the concepts of defamation and the false light in US law. 458 _{The undesirability}

456 _{Hartshorne (n 322) 102.}

457 _{Based on such argument, Hartshorne concludes that a similar approach of interim injunction rule should be} applied in false privacy and defamation law. This argument will be discussed in detail in the coming chapters of interim injunction and damages. ibid.

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of such overlap is related to the difficulty in establishing a claim to privacy for public figures because there could be a hidden motivation to protect their reputation interest behind every privacy claim. 459 _{In other words, privacy claims based on false facts might affect the integrity}

of privacy law itself since protecting the claimant’s reputation rather than privacy might stand as a real motive of privacy proceedings as Tugendhat J concluded in LNS v Persons Unknowns.460

This argument, however, is predicated upon an unconvincing basis since defamation law refutably presumes the falsity of an allegation once the defamatory meaning of allegations in question was proved. 461 _{The presumption of falsity is justified due to the}

difficulty of proving the defamatoriness and falsity of an allegation in the same time; however, such falsity could be rebuttable if the defendant successfully raises the defence of truth. 462

Thus, all defamatory statements are presumably and refutably false, but not all false statements are defamatory. It is the claimant’s task to prove the defamatory meaning, based on the relevant tests pertaining to such purposes, of the allegation in question.463

Rolph acknowledges as convincing the assertion that not every untrue statement is defamatory; however, he suggests that such a problem may be bypassed through a variety of defamatory tests that could be able to cover a broad range of false statements which could be actionable under one of those tests. 464 _{The variety of tests determining the defamatory}

meaning of a statement would provide significant protection against publications of false

459 _{Cheer (n 15) 313.} 460 _{(n 28) [95].}

461 _{See chapter 2.}

462 _{Giliker, (n 117) 134.}

463 _{See the defamation tests in chapter 2.}

464 _{Rolph refers to the three main tests of 'lowering the claimant in the estimation of right-thinking members of} society generally test', 'hatred, ridicule or contempt test' and ‘shun and avoid test’ explained previously in the chapter 2. Rolph (n 352).

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information on the grounds of covering a wild quantity of falsehoods. This suggestion, however, is flawed because not only would it leave the aggrieved party without legal remedy to redress harms caused by false private but non-defamatory information; but also, because it may cause further doctrinal problems to defamation law itself as being explained below.

Firstly, the concept of defamation would be doctrinally distorted since defamation tests would be overly extended to include harmfully false information. 465 _Eric

Descheemaeker casts doubt on the justifications of the inclusion of the ‘ridicule test’ and ‘shun and avoid test’ within the remit of defamation law, because such tests cannot determine meaningfully what should be regarded as defamatory.466 _{Descheemaeker claims}

that no reputational harms could result from a publication exposing the claimant to ridicule because she suffers a humiliation to her self-esteem and dignity rather than harm to her reputation in the eyes of others. 467 _{He also asserts that the same criticism could be levied at}

the second test of ‘shun and avoid’ under which allegations of shameful diseases and insanity were considered defamatory. Such involuntary allegations, as Descheemaeker argues, ought to be actionable under privacy law rather than defamation law because it is the claimant’s privacy, self-esteem and self-worth that would be violated instead of her reputation. 468

Such an approach may not only undermine the doctrines of defamation, but it would also undermine the concept of privacy. The inclusion of non-reputational (private) considerations within the protective remit of defamation affects the protection of privacy itself because it allows the fragmentation of privacy protection through different and

465 _{Gary T. Schwartz, ‘Explaining and Justifying a Limited Tort of False Light Invasion of Privacy’ (191) 41 Case W.}

Res. L. Rev. 885, 900. 466 _{Descheemaeker, (n 97)}

467 _{Therefore,Descheemaeker calls to abolish this test from the English law of defamation. Ibid.} 468 _Ibid.

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irrelevant causes of action that could also prevent justified treatment of alike cases rather than constituting a coherent and principled system. 469 _{If defamation law was used to protect}

‘privacy’ interests disguised within a deserved reputation interest, an unjust outcome may result, since truth constitutes a complete defence in defamation law, as a publication of true information cannot harm a deserved reputation. 470 _{This result would defeat the purpose of}

protecting privacy, which is inherent in law governing the disclosure of private information, because it may allow the disclosure of private information without proper justification based upon the defence of truth. However, privacy law considers truth and falsity as an irrelevant matter in terms of affecting the individual's right to control the dissemination of their private information. For example, such right to control may be significantly affected by the publication of a person's HIV status irrespective of whether the medical result in question was factually true or false. 471 _{The main justification for protecting non-reputational (private)}

considerations within the protective scope of defamation, as Descheemaeker explains, refers to the absence of direct actions protecting privacy rights in English law. 472

Such justification could be somewhat loosely grounded within the emergence of MOPI as a properly suitable cause of action locate private information within its protective scope irrespective whether such information was defamatory. Furthermore, there is a practical need to include falsehoods within MOPI scope since publications causing the claimant to be only shunned and avoided would hardly meet the new requirement of serious harm since

469 _Ibid. 470 _Ibid.

471 _{Descheemaeker, (n 97).}

472 _{Ibid. This justification has also been cited in Terry (LNS) v Persons Unknowns when Tugendhat J noted the} difficulty in fitting private considerations into defamation due to the lack of direct protection of privacy. (n 28) [96].

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such words would neither cause nor tend to cause serious harm to reputation since they relate to involuntary behaviours. 473

However, Descheemaeker’s arguments were predicated upon the unconvincing ground because he separates privacy and reputation interests and argues that private (dignitary) information cannot involve reputational considerations. It is established, conceptually speaking, that both privacy and reputation are dignitary interests and the harms to privacy or reputation could be classified as dignitary harms. In addition, based on Descheemaeker example of HIV status, the practical difficulty of drawing a hard line between privacy and reputation in respect of the publications of medical records on sexual conditions.474 _{Mann J refused, as a matter of principle, to eliminate the reputational harms}

from the realm of privacy on the grounds that the victim’s reputation would undeniably suffer some sort of damage resulting from the negative public attributes.475 _{Furthermore, in Cliff v} BBC, 476 _{the reputational harms were taken into account in assessing damages in privacy}

cases, since the protection of reputation was considered as a common function of defamation and privacy law. The Supreme Court has explicitly endorsed the function of privacy law as an alternative means to protect reputational harms beside the primary function of defamation law which protects also such harms. 477

The inability of defamation law to protect all false information (including false private information) unless such information is categorised as defamatory under defamation tests, motivated Patrick O'Callaghan to advance other justifications to explain the lack of protection

473 _{Ibid; Mullis & Parkes, (n 126); Descheemaeker ibid.} 474 _{Hannon, (n 287) at 29.}

475 _Ibid.

476 _{Cliff (n 312) [345].}

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for false private information within the scope of defamation. O'Callaghan argues that living within interconnected societies may constitute a basis for accepting the offensive and distressing harms caused by the dissemination of false private information; as long as reputational interests are not adversely affected in the eyes of (those legally deemed) right- thinking members of society. 478 _{O’Callaghan points out that such sacrificing approach would}

be compatible with European Convention of Human Rights because the margin of appreciation afforded to signatory States may likely take into account the legal protection afforded to false information under defamation law and this protection may be considered as an adequate remedy. In other words, harms caused by false private information cannot be deemed comparable to those harms caused by serious true privacy violations related to personal identity that require legal protection, since such harms may significantly undermine the individual’s fundamental aspects of her personality. 479

It appears that O’Callaghan only values the importance of reputation and the necessity of legal protection to the reputational interest if wrongly tarnished; whilst he unjustifiably undervalues the harmful impacts and consequences of the publication of false private information. Consequently, the latter is excused and justified because of the necessity of social interactions; whereas the former should merit the attention of law if reputation is seriously harmed, as defamation law is subjected to objective checks. 480 _{In addition,}

O’Callaghan’s argument extrapolated from the State’s approach argues that what might appear a wide margin of appreciation supporting the adequacy of remedies (with regards to defamation) to protect false privacy might be overstated. That is, a signatory State may not

478 _{O’Callaghan (n 6) 300-1.} 479 _{Ibid. 303-4.}

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have a broad appreciation of rights in respect of serious interference within private life. 481

Such a margin of appreciation should not be used in a manner leading to violation of the State’s positive obligations as these arise under Article 8 ECHR. In the context of privacy versus freedom of expression, the Strasbourg Court framed damages as a remedy for wrongful interference with Article 8 rights as satisfying the State’s positive obligations under Article 8 ECHR. 482 _{This means that the signatory States, based on a margin of appreciation, are free to}

choose positive methods in order to secure their compliance with that very obligation. 483

However, the margin of appreciation should not be extended towards accomplishing a complete denial of any legal remedy for false privacy. O'Callaghan's argument may imply some extension in violation of the State's positive obligation to ensure Article 8 rights around respect for private life, because such obligations impose on signatory States the requirement to enact positive measures which seek to secure, not deny, effective protection for privacy against wrongful interferences in matters between private parties. 484 _{Thus, it would be highly}

inconsistent with the State's positive obligation to secure the right to respect private life if dissemination of personal information related to sexual activities was permitted, simply

481 _{In Mosley v. UK, the applicant’s pre-notification requirement on the grounds of the inadequacy of damages} award in English law to restore his privacy as this had been violated by a deliberated publication of photographs and personal information, which the European Court rejected. It was on these grounds that the applicant argued: 'the only effective remedy in his case would were an injunction, a remedy which he was denied by the failure of the newspaper to notify him in advance’. The rejection was based on the broad margin of appreciation by which ‘State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal’. Therefore, the applicant’s pre-notification requirement would be inconsistent with the margin of appreciation granted because such requirements could conflict with the chosen system when balancing competing interests, especially in the case of freedom of expression being at stake. See. Mosley v. United Kingdom Application no. 48009/08 at 109 [ECHR, 2012]; A.D.T. v. UK Application no. 35765/97 [ECHR, 2000]

482 _{Mosley v. United Kingdom, (n 481) [120 & 122].} 483 _{Ibid. [107].}

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because of its falsity and non-defamatory contents, despite such activities involving the most intimate aspect of private life.