Reputational damage
Local authorities are often called upon to make judgements that affect a person’s reputation. Robert Ryder looks at the law for defamation and the availability of the defence of qualified privilege.
It is a well established principle of the law of defamation that in cases where qualified privilege is deemed to apply a person who has been defamed will not succeed in a claim for damages to their reputation even if the statement or statements complained of are untrue, unless they can prove that the maker of the statement was motivated by malice.
The public interest which underpins the defence of qualified privilege is the need for people to be allowed to speak freely on occasions when it is their duty to speak. The defence is available in a range of situations – which will to a large degree depend upon the specific facts of the case – and will clearly be of relevance and interest to those working in the public sector. In the ordinary course of business, employees in local authorities, for example, will have to make judgements about the conduct of individuals, and may also, on occasion, exchange e-mails or prepare reports which criticise the conduct of council members, colleagues, or members of the public.
At the end of last year the scope of a local authority’s ability to rely on the defence of qualified privilege was considered by the court in the case of Morrison v Buckinghamshire County Council and another [2011] EWHC 3444 (QB). The Claimant, Ms Morrison, sued Buckinghamshire Council for damages in libel. The Council raised qualified privilege in its defence of the claim.
Ms Morrison, was a former head teacher and Ofsted inspector. She had been contacted by the Council to ask whether she was interested in working as a National Challenge Adviser (‘NCA’) for Buckinghamshire. The Council had identified Ms Morrison as a suitable candidate on the basis of her database pen portrait which read as follows: ”Amongst other senior posts I was Headteacher of Parkstone Grammar School between 1997-2000 – moving the school from serious weakness (Ofsted 1997) to a very good school (Ofsted 2000)”.
A third party contacted the Council and queried whether Ms Morrison’s claims in her pen portrait were accurate. This prompted one of the Council’s employees, a Mr Edgar, to make some enquiries. Based on his enquiries, Mr Edgar wrote to various people, including Ms Morrison. In his letter he claimed that Ms Morrison had been guilty of a ‘clear misrepresentation’ with regard to certain aspects of her pen portrait. The Council raised qualified privilege in its defence on the basis that Mr Edgar had a duty or interest to convey the contents of his letter to those to whom the letters were sent, by virtue of their positions, and that they had a corresponding duty or interest to receive that information.
The Council also raised justification as part of its defence, i.e. that certain of the statements complained of were, in fact, true.
It was argued on Ms Morrison’s behalf that Mr Edgar’s reaction to the concerns raised about Ms Morrison was rushed and unfair; that he did not properly investigate the concerns which had been raised; and that he had ignored some of the findings in one of the Ofsted reports. Mr Edgar was also criticised by the Claimant’s counsel for failing to contact Ms Morrison before reaching his conclusions, to give her an opportunity to defend herself.
Those acting on behalf of Ms Morrison raised these arguments in support of an application to amend her claim – to include a plea that a public authority can only rely on qualified privilege if it can show that it has acted compatibly with the Article 8 rights of those to whom the published information related.
The Court affirmed the earlier decision in the Guardian News case (Re Guardian News & Media Ltd [2010] WLR 325) that Article 8(1) is capable of encompassing a right to reputation.
The Court then considered whether the alleged interference with the Claimant’s Article 8 rights could be said to fall within the exception in Article 8(2). In dealing with this the Court referred to the four stage test in the case of Huang v Secretary of State for the Home Department [2007] 2 AC 167 ie (1) the interference must be in pursuit of a legitimate aim (2) the measures taken must be connected to that aim (3) the means used, and which had led to the interference with the Claimant’s convention rights, must be necessary to achieve the aim and (4) a fair balance must be struck between the rights of the individual and the interests of the community at large.
Applying this test, the judge decided that the letters sent by Mr Edgar did pursue a legitimate aim, namely that of improving standards in schools. However, in deciding whether or not a fair balance had been struck, the judge felt that there was some force in the Claimant’s argument that Mr Edgar should at least have contacted Ms Morrison to ask for her explanation for the references in her pen portrait, and without having obtained an explanation, he should have expressed himself in his letters in terms of concern, instead of stating, as a matter of fact, that she had been guilty of misrepresentation.
The judge acknowledged that it raised difficult questions about the availability of qualified privilege as a defence to defamation claims against public authorities. All local authorities are public authorities within the meaning of section 6 of the Human Rights Act 1998. It is unlawful for a local authority, or anyone acting on its behalf, to publish information relating to an individual which interferes with their right of reputation under Article 8(1) of the ECHR, unless the publication of the information falls within the exemption in Article 8(2).
There will be many occasions during the ordinary course of a local authority’s business when judgements have to be made about the conduct of an individual. Local authorities and those acting on their behalf will have to exercise care in drafting e-mails and reports to ensure that any criticisms of an individual which could affect their reputation are firmly supported by facts which have been checked and which are accurate.
Considerations of fairness also come into play. In appropriate cases, individuals should be given an opportunity to comment on allegations which have the potential to damage their reputation if the allegations are to be circulated to others. Care also needs to be taken to ensure that e-mails or reports which contain criticisms of individuals, are sent only to those who need to see the information. If damaging comments are disseminated to a wider audience, there is risk that the defence of qualified privilege will not apply to those within the group whom it was unnecessary to include in the communication.
This will not affect the public body’s right to rely on other defences to claims in defamation, principally justification and fair comment. However, where an individual’s Article 8 rights (in terms of the right to reputation) are engaged, a public authority cannot automatically assume that it will be able to raise qualified privilege in its defence.
Robert Ryder is an Associate at Eversheds. He can be contacted on 0845 497 9797 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
