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Will a Recent Injunction Risk Freedom of Expression?

Thursday, 27 November 2014

A recent case has pitted freedom of expression against the use of an injunction which was granted to prevent the release of information from harming a child. Although the facts of the case make the judgement understandable, there are concerns that such developments in this area of media law could be detrimental to freedom of expression.

The judgment in the case known simply as OPO v MLA [2014], involved a British performing artist, MLA, who has been ordered by the Court of Appeal to put the publication of his book on hold until the issue was decided at trial.

Background to OPO v MLA [2014]

The artist’s ex-wife, BHM, brought the claim on behalf of their son, OPO. The ex-wife claimed and showed evidence that their son would suffer medically if he read the extracts from the book pertaining to the childhood abuse of his father.

While that argument was accepted, the Court rejected the argument by BHM that there was a “misuse of information”, or the whole book should be banned. The trial date is set for April 2015 but lawyers for BHM and OPO have said that they are considering appealing the decision to the UK Supreme Court.

Reasoning of the Court of Appeal in OPO v MLA [2014]

The primary legal issue arising in the case is particularly alarming because the Court of Appeal relied upon the grounds of Wilkinson v Downton [1897]. This case created a precedent that provided a remedy where there has been intentional infliction of psychological harm. It is piece of tort law that is rarely used and its application has been narrowed through legislation in the Protection from Harassment Act 1997. Hence, it is surprising that the case was decided on such dubious precedent.

OPO v MLA is the first time that the Court applied the test that success for the claim needs to be “sufficiently favourable for an injunction to be granted in accordance with s12 of the Human Rights Act 1998 (HRA) which protects freedom of expression. The main legal concern is the impact of this decision on freedom of speech.

Implications of the Court of Appeal Decision in OPO v MLA [2014]

The implication is that the threshold required to obtain an injunction has been lowered quite significantly. This could potentially lead to injunctions being awarded simply because people are distressed by other people’s work. Additionally there is a concern that boundaries for freedom of speech have been eroded as an injunction has been granted for the privacy concerns for someone not even living in the UK.

However, lawyers for BHM and OPO argue that there is no implication on freedom of speech as the facts of the case are very “specific” and “unusual”. This suggests a minimalist reading of the judgment. Arguably this view is supported by the Court of Appeal when it said that the issue would be decided at trial but did affirm that there is a public interest in the book being published and so this could undermine the injunction raised.

Comment

The two main concerns with the case are firstly, that it was brought on the grounds of obscure case law which Parliament has even legislated to narrow and secondly, that there is a threat of a serious impact on freedom of speech through a lowering of the threshold of the test in s12 of the HRA 1998.

For specialist advice about media law, in particular bringing or blocking injunctions to prevent the release of information contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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