Week 23: Personality Rights & Reputation, and Bodily Integrity

Question 1

What is the exclusion to the general rule that solicitors may not and must not share confidential information about their clients?

Answer 1

When it concerns a crime the accused intends to commit.

Question 2

Identify the test established in Coco v AN Clark (Engineers) Ltd. (3).

Answer 2

1. That the information was confidential
2. That the circumstances of the disclosure impose an obligation of confidence
3. That there was unauthorised use of the information by the defendant to the detriment of the plaintiff

Question 3

What is the test to determine whether information is confidential, as established in Attorney General v Gaurdian Newspaper Ltd (no. 2) [1990] 1 AC 109

Answer 3

1. Must be confidential i.e. not in the public domain
2. The duty of confidence applies only to useful information i.e. not trivia etc.
3. Confidentiality can be outweighed by some other countervailing public interest which favours disclosure

Question 4

What is the condition for an actionable breach of confidence to arise?

Answer 4

Must be a duty of confidence owed to the wronged party

Question 5

HRH Prince of Wales v Associated Newspapers (No. 3) [2008] Ch 57

Answer 5

Establishes that a duty of confidentiality arises when a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.

Question 6

Why is the use of the term ‘confidential’ disputed in HRH Prince of Wales v Associated Newspapers (No. 3) [2008] Ch 57 ?

Answer 6

It doesn’t encapsulate matters of peoples private lives .

Question 7

Art. 8 of the ECHR

Answer 7

1. Everyone has the right to respect for his private and family life, jis home and his correspondence.
2. There shall be no interference by a public authority wit hthe excersises of this right except such as in accordance with the law and is necessary as in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

(Right to privacy)

Question 8

Art 10 of the ECHR

Answer 8

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television, or cinema enterprises.
2. The exercises of these freedoms since it carries with it duties and responsibility, may be subject to such formalities conditions, restriction or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity and public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the justiciary.

(Freedom of expression)

Question 9

Campbell v MGN Ltd

Answer 9

• Naomi Campbell was photographed coming out of an NA meeting
• Headline: Naomi: Im a drug addict.
• When balancing the rights conferred under Art 8 and Art 10 of the ECHR, the court favoured the application of Art 8, and found in favour of Naomi Campbell.
• Contrasts Ferdinand.
• While it is true the public interest question is important because the case involved medical confidentiality.

Question 10

Ferdinand v MGN Ltd [2011] EWHC 254 (QB)

Answer 10

• Concerned an affair between the England Captain Rio Ferdinand and the woman in question.
  -When balancing the rights conferred under Art 8 and Art 10, the court favoured the application of Art 10
• Court found in favour of MGN, sighting freedom of expression.
• The distinction between this and conflicting cases which favour the application of the right conferred under Article 8 is the fact because Ferdinand was the England Captain there was a public interest question.

Question 11

McKennitt v Ash [2006] EWCA Civ 1714

Answer 11

• Publication of private information by a former friend
• Declared that the plaintiff had a reasonable expectation to privacy

Question 12

What are the four key features of Re S (A Child) [2005] 1 AC 2005 which outline how courts should go about balancing Art 8 and 10.

Answer 12

1. Neither Art 8 nor Art 10 have precedence over one another.
2. Where the articles are in conflict with each other, then there is a specific comparative focus on the rights being claimed by the parties
3. The justifications for interfering with each right must be taken into account
4. The proportionality test must be applied.

Question 13

Axel Springer AG v Germany [2012] EMLR 15

Answer 13

• Photos of an actor being arrested
• Declared that the photos interfered with right to privacy
• Misuse of private information
• Favoured the application of Art 8.

Question 14

Murray v Express Newspapers plc [2009] Ch 481

Answer 14

• Art 8 right outweighed Art 10 right
• Misuse of private information
• Photographers covertly taking photos of JK Rowlings son on a street in Edinburgh

Question 15

• The Duchess of Sussex v Assosiated Newspapers Ltd [2021] EWHC 273 (Ch)

Answer 15

• Publication of a letter wrote from the Duchess of Sussex to her Father
• Found that the Duchess had a reasonable expectation of privacy, therefore
• Article 8 outweighed Article 10.

Question 16

Bloomberg LP (Appellant) v ZXC [2022] UKSC 5

Answer 16

• A person under investigation for a crime has a reasonable expectation to privacy
• Misuse of private information in circumstances where there is a criminal investigation ongoing

Question 17

Define defamation as outlined under s1 (4) (a) of the Defamation and Malicious Publication (Scotland) Act 2021.

Answer 17

A statement about a person is defamatory if it causes harm to the perosns reputation (that is, if it tends to lower the persons reputation in the estimation of ordinary persons)

Question 18

With reference to defamation, define a statement.

Answer 18

Statement means words, pictures, visual images, gestures by any other method of signifying meaning

Question 19

Is innuendo included in defamation?

Answer 19

Yes

Question 20

What are the two conditions to bring an action for defamatory publications?

Answer 20

a. A has published the statement to a person other than B, and

b. The publication of the statement has caused (or is likely to cause) serious harm to the reputation of B

Question 21

Sobrinho v impresa Publishing SA [2016] EWHC 66 (QB)

Answer 21

• Gives the word ‘serious’ its ordinary meaning
• Defamation

Question 22

• Lachaux v Independent print Ltd & Anor [2019] UKSC 27\

Answer 22

1. This case clarifies the burden of proof for claimants, emphasising that they must show evidence of serious harm to their reputation caused by defamatory statements.
2. The ruling acknowledges that serious harm can be inferred from the inherent tendency of the words used in the publications to cause damage to the claimant’s reputation.

Question 23

What three remarks are made about the term ‘serious’ in relation to defamation in Cookie & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB).

Answer 23

1. Showing serious distress or injury to feelings is not enough.
2. ‘Serious harm’ is a higher threshold than ‘substantial harm’
3. In some cases serious harm may be plain from the words of the publication and no further evidence is required to prove serious harm.

Question 24

Truley v Unite the Union & Anor [2019] EWHC 3547 (QB)

Answer 24

• Small circulation publication
• Position of claimant important

The core of the claim was that an article on The Skwawkbox, which was based on a press statement issued by Unite, falsely suggested Turley had acted fraudulently within the union

The High Court found that Unite was liable for publishing the article because of the provision of the press statement, which contained the defamatory meaning. The press statement referred to “fraud” in unambiguous terms

Question 25

What are the three types of person which a defamation action can be brought against? (3).

Answer 25

1. The author, editor, or publisher 2. An employee or agent of such person as above 3. Responsible for the statement or the decision to publish it.

Question 26

Are those who do not intend for a statement to be published included as authors?

Answer 26

No.

Question 27

Define author

Answer 27

The person from whom the statement originated.

Question 28

In regard to online statements who are the three types of people who are excluded from defamation actions?

Answer 28

1. Those who reshare the publication. 2. Those who mark an interest in the publication. 3. Involvement does not materially increase the harm caused by the publication.

Question 29

Monson v Tussauds Ltd [1894] 1 QB 671

Answer 29

- Waxwork placed outside a room full of notable criminals - Injunction could not be granted in this specific case, due to disputes as the granting of consent to the construction of the waxwork.

Question 30

Prophet v BBC 1997 SLT 745

Answer 30

- BBC gameshow - Plaintiff was accused of being fraudulent and a homosexual - Appeal held, suggesting that the statements were such that it would result in serious harm.

Question 31

Russell v Stubbs Ltd [1913] 2 KB 20

Answer 31

- Innuendo that the plaintiff was unable to pay their debts - List of those attending debt hearings in a newspaper - Declared not to be considered as defamatory

Question 32

Mackeller v Duke of Sutherland (1859) 21 D 222 McRostie v Ironside (1849) 12 D 74

Answer 32

Professional, Vocational or Business Competence (Defamation).

Question 33

What are the five defences to defamation?

Answer 33

1. Truth 2. Honest opinion 3. Public interest 4. Privilege 5. Qualified privilege

Question 34

What are the conditions attached to the honest opinion defence? (3).

Answer 34

1. Statement was a matter of opinion 2. Statement indicated a reference to the evidence upon which it was based 3. An honest person would have held that opinion when presented with any part of the evidence presented.

Question 35

What is qualified privilege?

Answer 35

A has a moral, social or legal duty to make a statement and B has an interest in the information in the statement – * References * Complaints * Reports about parliamentary privilege * Peer-reviewed academic work * Malice

Question 36

Can the court enforce an apology?

Answer 36

Yes.

Question 37

Ashton Properties (Glasgow) Ltd v Unite the Union

Answer 37

The meaning of the two tweets

Question 38

What are SLAPPs

Answer 38

Strategic Lawsuits Against Public Participation (SLAPPs) * Economic Crime and Corperate Transparancy Act 2023 ss194-195 (England and Wales) * Solicitors Regulations Authority Warning Notice * Government rules our immediate SLAPP legislation * S19 Actions against a person not domiciled in the UK * S32 – A case must (usually) be brought within one year of first publication

Question 39

What are the three remedies available for defamation?

Answer 39

1. Offer to make amends 2. Statements on Open Court 3. Damages

Question 40

What are the five instances in which there is absolute privilege?

Answer 40

1. Houses of Parliament 2. Judicial proceedings 3. Reports by Parliament 3. Statements made in the Scottish Parliament 4. Statements made by the Lord Advocate and their underlings

Question 41

What are the three instances of qualified privilege?

Answer 41

1. You are making a report (However this must be made to the correct authority eg. defaming a police officer to a journalist as opposed to the constabulary) 2. Reports of international legislatures 3. Parties giving evidence in civil proceedings

Question 42

However what is the condition that qualified privilege must meet?

Answer 42

Must not be malicious.

Question 43

Can those who materially increase the harm of a defamatory comment also be found liable?

Answer 43

Yes. Such as a macro influencer.

Question 44

What is the prescription on defamatory statements

Answer 44

1 year/12 months

Question 45

Who cannot bring an action for defamation?

Answer 45

Public office holders.

Question 46

Does defamation apply to calling someone a homosexual?

Answer 46

No - however an action was successful in which someone called a nun a lesbian.

Question 47

Does defamation apply to calling someone a liar?

Answer 47

No, however if you call them a thief and liar that is different.

Question 48

Does the 2021 Act abolish the common law in this area? [Defamation]

Answer 48

No - qualified privilege and absolute privilege remain.

Question 49

Do scientific reports generally enjoy qualified or absolute privilege?

Answer 49

Qualified.

Question 50

Is solicitor-client privilege degraded by the passage of time?

Answer 50

No. See: Law Society of Scotland Practice Rules 2001, rB1.6

Question 51

Who are the four actors who can waive the duty of confidentiality between a solicitor and a client?

Answer 51

1. The client 2. A legislature 2. Subordinate legislation 4. The court

Question 52

Describe the circumstances leading up to Coco v AN Clark (Engineers) Ltd

Answer 52

* Coco shared a design for a moped with AN Clark * The design of the rear tyre was flawed and was therefore abandoned, however * AN Clarke later manufactured an engine which bore similarity with the one featured in the design sent by Coco * Coco brought an action against AN Clark * The Court established the following test to determine whether the information disclosed between the parties was confidential and therefore actionable

Question 53

Duchess of Argyll [1967] Ch 302

Answer 53

Highlights the second criteria of the Confidentiality test: that the circumstances of the disclosure impose a duty of confidentiality.

Question 54

BC v Chief Constable of Scotland 2021 SC 265

Answer 54

- Private messages on a WhatsApp group chat - Messages were racist, sexist and homophobic - Messages then used in another criminal case - Defence submitted that officers enjoyed a reasonable expectation of privacy and therefore the messages were inadmissible - Art 10 outweighed Art 8 and messaged declared admissible

Question 55

Stoute v New Group Newspapers [2023] EWCA Civ 523

Answer 55

- Mr and Mrs Stoute became rich from PPE contracts during the COVID pandemic - They were photographed during lockdown on their boat and on public beaches in the Bahamas - Sought for an injunction preventing the publication of the photographs - Court favoured the application of Art 10 over Art 8 suggesting that when conducting performative acts there is no reasonable expectation to privacy.