Reference:  EWCA Civ 1171
Court: Court of Appeal
Judge: Ward, Thomas, Richards LLJ
Date of judgment: 21 Dec 2010
Summary: Defamation - Libel - Qualified privilege - Local Authority duties - Public Authorities - Anti-social behaviour - Violent Persons Register - Article 8 - Necessity and proportionality of publication - Human Rights Act 1998
Download: Download this judgment
Appearances: Christina Michalos KC (Respondent)
Instructing Solicitors: Simons Muirhead & Burton for Respondent, Barlow Lyde & Gilbert LLP for Appellant
C was a resident of Slough who witnessed some anti-social behaviour in a local park. She reported it to the Council’s anti-social behaviour co-ordinator (ASBO Officer). C was dissatisfied with the way the Officer responded to her report and subsequently complained to the Council. She wrote a letter of complaint to the Council in which she stated “I am certain I would have physically attacked her if she had been anywhere near me.” She repeated a similar sentiment, also as a figure of speech in the past tense at a meeting with K, the Council’s Head of Public Protection who was investigating the complaint.
The Council placed C on its Violent Persons’ Register for 18 months with a risk rating of medium. The Register was circulated within the Council electronically to Council employees but also to four external partner organisations, which included 50 businesses in the Town Centre Business Initiative and others that would have no contact with C.
K also published an email stating that C had made repeated violent threats to staff to 66 employees of the Council.
At trial, the judge ruled that the only publications subject to qualified privilege were those to “customer facing staff” in 3 named departments of the Council likely to have contact with C. There was no qualified privilege defence in respect (1) of Council employees in the Licence, Food & Safety, Children & Education Services Departments and (2) in relation to community wardens, trade union officials or anyone in the four partner organisations.
Accordingly, the jury (which rejected the defence of justification but found malice not proven) were directed to assess damages on the basis the the Register had been circulated to 150 people and the email to 30 people – the remaining 66 being covered by qualified privilege.
The judge had held that in order for a public authority to claim it had the interest or duty required at common law for there to be a defence of qualified privilege, it needed to comply with its public law duties under the Human Rights Act 1998 (following Wood v Chief Constable of West Midlands and declining to follow Kearns v General Council of the Bar). The only right engaged was C’s right to her reputation under Article 8. Circulation to the other departments and to ther partner organisations was not proportionate or fair and so was not covered by the defence of qualified privilege.
The Defendant appealed to the Court of Appeal in respect of the ruling on qualified privilege.
(1) whether a public authority should only be entitled to rely on the defence “qualified privilege” in respect of a defamatory publication if it the publication was consistent with its public law duties.
(2) the extent to which a public authority should only publish information for the purpose of and to the extent necessary for performance of its public duty and in accordance with its obligations under the HRA.
(3) whether it is impermissible to invoke Convention rights to create in effect a new defence to a common law claim relying on Van Colle v Chief Constable of Hertfordshire Police  UKHL 50.
1. Following Wood v Chief Constable of West Midlands, a public authority is bound to comply with its public law duties. The private interest in a person’s reputation is to be preferred to the public convenience of unfettered communication where there was no duty to communicate at all.
2. Publication to those persons that the judge excluded from qualified privilege was disproportionate because they were not at risk of harm from the Claimant. To publish as widely as the Council did was in breach of the Claimant’s Article 8 rights.
3. The Court of Appeal in Kearns v General Council of the Bar did not make new law or disapply the traditional dual classification that qualified privilege depends upon showing either a duty or interest situation. Kearns was an “off the peg”privilege that could be resolved by looking at the relationship between the parties and the subject matter of the communication. In the present case (unlike Kearns where the defendant was the Bar Council) the Defendant was a public authority and subject to public law duties.
4. The Court of Appeal rejected the argument that requiring a public authority to make an individual assessment of the propriety of every publication would render it disproportionately vulnerable. It cannot be disproportionate for a public authority to do what it is bound to do in any event whether in performance of its public law duties or under the Data Protection Act 1997.
5. No new defence was being created. The defence is the common law defence of qualified privilege and to claim the defence the Defendant must establish a duty to communicate the information to those who have a corresponding interest or duty to receive it.
A significant decision holding in unequivocal terms that a public authority cannot rely on the defence of qualified privilege if publication was not in compliance with their public law obligations under the European Convention (ie. publication must be shown to be necessary and proportionate). The Court rejected the Appellants argument that such a decision would destroy the social utility of the defence because authorities would be forced to draw the line too restrictively and thus hinder free and frank communication. This was not a more onerous obligation because local authorities were bound to comply with their public law responsibilities in any event. The proportionality of publication is therefore likely to be the key issue in future cases where a public authority is seeking to rely on qualified privilege.