OPO v MLA and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Jackson,Lord Justice McFarlane |
| Judgment Date | 09 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1277 |
| Docket Number | Case No: A2/2014/2442 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2014 |
[2014] EWCA Civ 1277
Lady Justice Arden
Lord Justice Jackson
and
Lord Justice McFarlane
Case No: A2/2014/2442
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Queen's Bench Division
The Hon Mr Justice Bean
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Nicklin QC (instructed by Aslan Charles Kousetta LLP) for the Appellant
Hugh Tomlinson QC (instructed by Bindmans LLP) for the First Respondent and Jacob Dean (instructed by Simons Muirhead & Burton) for the Second Respondent
Hearing dates: 14–15 August 2014
Threat of publication of allegedly harmful book
The claim in this case is to stop publication of a book ("the Work") which, on the claimant's case, is likely to cause psychological harm to the claimant. He is the writer's young son. The Work is semi-autobiographical, written, but not yet published, by a talented young performing artist ("MLA"). To preserve the anonymity of the parties to these proceedings, he is known as MLA. He has obtained a high degree of distinction in his chosen career despite having had a tormented childhood. When he was still very young, he was for many years the subject of sexual abuse, not at home but at school. He was traumatised by this, as well as suffering physically, and it has led him to have episodes of severe mental illness, and to have got a thrill out of self-harm. Yet despite all that he has now been able to speak out about his experiences and to describe them. He brings them together in an artistic and insightful way in the Work. He has found a means through his art of coping with the trauma and the past. In the Work, he provides new perspectives on the subject of his professional work, with also descriptions of the past abuse and illnesses he suffered as a result. It is striking prose. It is said that the Work contains an important message of encouragement to those who have suffered similar abuse to speak about their past.
There is, however, a major problem yet to be confronted. The Work is dedicated to his son by his first marriage, now dissolved. His son, OPO, lived in the UK until his parents' divorce but now lives with his former wife in another country ("Ruritania"), on his mother's case to get specialist help unavailable in the UK. He has dual British and Ruritanian nationality. But father and son keep in touch by Skype and father has rights of staying access four times a year, sometimes in this country and sometimes in Ruritania. OPO is approaching his teenage years. OPO is the claimant in these proceedings.
OPO suffers from significant disabilities: he has a diagnosis of a combination of ADHD (attention deficit hyperactivity disorder), Asperger's, Dysgraphia and Dyspraxia. A child psychologist, who saw him in 2009 before he moved to the place where he now lives, has reviewed his notes and spoken to the medical team now in whose care he now is. She confirms that he has communication difficulties typical of someone with a diagnosis of Asperger's: she was told by his team that he processes information very much in his own way. Her opinion is that no child should read the graphic description of the way that MLA suffered because of the sexual abuse. She notes that OPO is now "computer savvy" and will in her opinion find the Work online. Her view is that MLA has no idea of the damage it will cause OPO. She works with children who have been traumatised by what they have found on the internet. His reactions are unpredictable: he could self-harm because the Work makes that all right. She does not consider that he can be coached in order to manage the possibility of his reading the Work.
MLA rejects this evidence. He says in his witness statement that he has often discussed difficult topics with his son and he considers that he would be able to approach him for loving reassurance regarding the past. In any event this expert has not had any recent contact with OPO.
There is now another report in evidence from a psychologist who has seen OPO recently. This time the psychologist had seen the Work as it is proposed to be published. This report shares the view that the Work would distress any child of his age. It expresses the view that the Work would be likely to exert a catastrophic effect on OPO's self-esteem and to cause him enduring psychological harm. The report considers that OPO would view himself as responsible for some of his father's psychological distress and would also view himself as being an extension of his father. He might attempt to act out some of the descriptions in the Work. It would not be possible to talk to him about the Work in advance.
OPO is aware of his father's professional achievement. He is described by his mother's lawyer in her country of residence as a particularly intelligent child who is very proud of his father. He does not know about the sexual abuse or the scale of his father's self-harm, addiction and mental illness. There is expert evidence that, if OPO becomes aware of the scale of sexual abuse and self-harm described in the Work, he will be unable to cope with it and become greatly disturbed.
In days before the internet, OPO could probably have been protected from harm. But the internet makes that much more difficult. His mother has blocked a number of sites to which he could go on the internet, but this is not a total answer. OPO is already aware of his father's entry on Wikipedia, and so it is too late to block that. The Wikipedia entry is likely after publication of the Work to contain a cross-reference to it. His school friends may tell him about it, and so on.
So OPO brings these proceedings by his litigation friend to seek to stop the publication of MLA's account of the abuse he suffered as a child or his suicidal thoughts, his history of mental illness or incidents of self-harm anywhere in the world. These proceedings have been anonymised by order of the court and this appeal was heard in part in private and otherwise subject to restrictions on publication of any material from the Work or any material that might directly or indirectly identify OPO.
This court is not dealing with the trial of the action but with an interim injunction. That makes a difference to the analysis because the court is concerned only with the question whether there ought to be an injunction to cover the period until the decision at trial. Moreover, in this situation, the court can make no findings of fact because it has not heard the witnesses.
However, because OPO seeks an injunction which affects MLA's freedom of expression, he has to satisfy a higher test in addition to those normally applicable to an application for an interim injunction. The normal basis for an interim injunction is that there is a serious issue to be tried and the balance of convenience favours an injunction. Where, however, an interim order would affect the right to freedom of expression, section 12 of the Human Rights Act 1998 ("the HRA") provides that the court must be "satisfied that the applicant is likely to establish that publication should not be allowed." Moreover, section 12(4) of the HRA requires the court to have particular regard to the importance of that right, and, where the proceedings relate to literary material, to the extent to which it has already been published and to which it would be in the public interest for the material to be published.
Each side has a right protected by the European Convention on Human Rights ("the Convention"). In the case of OPO, it is the right to respect for his private and family life guaranteed by Article 8 of the Convention. In the case of the defendants (MLA and his publisher), there is a right to freedom of expression guaranteed by Article 10 of the Convention. In addition members of the public have the right under Article 10 to receive the publication. The rights conferred by Articles 8 and 10 on their face conflict, but they are "qualified rights" which may be restricted in order to protect the rights of others. So the court has to balance the two rights in the manner which Section 12 requires.
English law does not recognise a wrong based on invasion of privacy as such ( Wainwright v Home Office [2004] 2 AC 406). The courts have developed a wrong, now known as "misuse of private information" ("MPI"), which is one of the three wrongs which OPO asserts is threatened by publication by the Work.
The publisher of the Work is STL. STL has already caused the Work to be printed, and arrangements have been made for its distribution both in the UK and elsewhere but not in Ruritania.
The father has already agreed to alter the Work to remove passages that might cause harm to OPO, removing for example a letter in it addressed to his son. However, his mother does not consider that the changes to the Work have gone far enough.
In proceedings taken in the Ruritanian court, the father's case was that OPO would not be likely to view the Work until he had reached the age of majority and that the mother's characterisation of OPO's needs have been overstated and exaggerated. He denies that the mother relocated in order to enable OPO to get specialist help. He is proud of his ability to speak out about the issue of his past abuse to assist other individuals who face similar forms of abuse and mental illness, and refers to the fact that after an interview he gave one of his abusers was arrested and charged with indecent assault. He does not intend his son to view the Work until majority. He contends that he has been the subject of several television...
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