Rhodes v OPO [2015] UKSC 32

Concert pianist James Rhodes sought to publish an autobiography detailing childhood sexual abuse. His ex-wife brought proceedings on behalf of their son, claiming publication would cause the child psychological harm under the Wilkinson v Downton tort. The Supreme Court allowed the appeal, holding the tort did not extend to truthful autobiographical accounts.

Facts

James Rhodes, a concert pianist, wrote an autobiography entitled ‘Instrumental’ describing his childhood sexual abuse, subsequent mental health struggles, self-harm, and eventual recovery through music. His ex-wife initiated proceedings in their son’s name seeking to prevent publication of certain graphic passages, arguing they would cause psychological harm to their vulnerable child who had been diagnosed with Asperger’s syndrome, ADHD, dyspraxia and dysgraphia. The parents had previously agreed in divorce proceedings to ‘use their best endeavours to protect the child from any information concerning the past previous history of either parent which would have a detrimental effect upon the child’s well-being’. Bean J dismissed the application and struck out the proceedings, but the Court of Appeal granted an interim injunction restraining publication of certain ‘graphic’ passages.

Issues

Principal Legal Questions

1. What is the proper scope of the tort recognised in Wilkinson v Downton (intentionally causing physical or psychological harm)?

2. Can this tort be used to prevent a person from publishing true information about themselves?

3. What mental element is required for the tort?

4. Was the form of the injunction granted by the Court of Appeal appropriate?

Judgment

The Conduct Element

The Supreme Court unanimously allowed the appeal. Lady Hale and Lord Toulson, delivering the lead judgment, held that the tort requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse. The book was written for a wide audience, not directed at the child in isolation. When the wider question of justification is considered, including the legitimate interest of the author in telling his story and the public interest in hearing it, there was every justification for publication.

Freedom of Expression

The Court emphasised that freedom to report the truth is a basic right to which the law gives a very high level of protection. It is difficult to envisage circumstances where speech which is not deceptive, threatening or abusive could give rise to liability for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. A right to convey information carries with it a right to choose the language in which it is expressed.

The Mental Element

The Court held that imputed intention has no proper role in modern tort law. The defendant must actually intend to cause physical harm or severe mental or emotional distress. Recklessness is not sufficient. On the facts, there was no basis for supposing the father had an actual intention to cause psychiatric harm or severe distress to his son.

Form of Injunction

The injunction was flawed in banning publication based on the ‘graphic’ nature of descriptions, which lacked the clarity and certainty required. Freedom of expression extends to how something is said, not merely what is said.

Implications

This judgment significantly clarifies and narrows the scope of the Wilkinson v Downton tort. It establishes that: (1) truthful autobiographical publication cannot normally found liability under this tort; (2) imputed intention is abolished in this area of tort law; (3) actual intention to cause at least severe mental or emotional distress is required; (4) courts should not exercise editorial control over how writers express their experiences; and (5) any injunction must be framed with sufficient precision. The decision strongly affirms freedom of expression, particularly the right to tell one’s own story in one’s own words, even where this may cause distress to others.

Verdict: Appeal allowed. The order of Bean J striking out the claim was restored. The interim injunction granted by the Court of Appeal was discharged, permitting publication of the book including the passages to which objection had been taken.

Source: Rhodes v OPO [2015] UKSC 32