Public v Private: The Forbidden Memoir

by Joey Brooke

Situation:

The case is between the unnamed, famous author and publisher of a memoir against the author’s ex-wife and son who wish the memoir not to be printed.

The 3 grounds that the claimants are making their case on are:

  1. Misuse of private information – it was argued against this claim that it isn’t the son’s information but the father’s and any references and names had been changed since the original manuscript was leaked to the mother, BHM.
  2. Publication of the book breached a duty of care to the son by the father – the “Court of Appeal accepted there was clear authority and no such general legal duty of care is owed by a parent to a child” (Inforrm’s Blog)
  3. Publication of the book went against the civil lawsuit of intentional infliction of mental suffering established in the Wilkinson v Downton case of 1897

It was on this ground that the temporal injunction on the publication has been allowed

The issues with this:

The Wilkinson v Downton is a case in which a man played a practical joke on a woman, telling her that her husband had suffered a serious accident, to which she responded badly and suffered nervous shock. She claimed compensation for psychological damages of this joke played on her. The grounds that this can be used in the OPO v MLA case rests on the fact that son suffers from a combination of ADHD, Asperger’s, Dysgraphia and Dyspraxia. Two psychologists gave evidence that they believed the publication of this book, containing the information about the sexual abuse the father went through at school, would “exert a catastrophic effect on [the boy’s] self-esteem and to cause him enduring psychological harm”. To acknowledge the third ground, the Lady Justice Arden had to interpret this case in three innovative ways:

  • Despite previous cases using Wilkinson vs. Downton as precedence, she held that the communication of the information did not have to be false, as in the original case.
  • The dissemination of the information did not have to be directly to the claimant, which differed to the previous cases using Wilkinson v Downton as precedent.
  • The justifiability of disseminating the information in the memoir was limited to only thinking about the claimant, and not considering the effects that the memoir might have on a wider, public scale.

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One of the contentions with the ruling is that the court had to determine the likelihood of success at trial before it could grant the injunction, due to section 12 of the Human Rights Act 1998. The first application for an injunction was initially refused by Mr Justice Bean, demonstrating there are mixed opinions within the judiciary profession to the legitimacy of this application. The book was described by the court as dealing with such difficult subjects “in an artistic and insightful way” and that the memoir had “an important message of encouragement to those who have suffered similar abuse to speak out about their past”, so it could have a positive effect on the public, as MLA’s previous work has (even resulting in the arrest of one of his abusers). Section 12(4) of the Human Rights Act actually requires the court to consider, when faced with literary materials, the extent to which it would be in the public’s interest to publish material.

Another point is that the boy does not live in the UK and the publisher had already agreed not to distribute books in “Ruritania”, the name given in court to the boy’s country.

The injunction is based on the likelihood of two circumstances occurring: the boy reading the material, and the boy suffering psychological damage from doing so. Until this occurs no legal wrong has arisen.

Jo Glanville, English PEN director, commented on this decision, saying that it “sets a worrying precedent for injuncting memoirs or any non-fiction that may expose or investigate the past, whether personal or political. It would allow anyone to cite the distress of a relative of friend as grounds for censorship.”

Tamsin Allen, MLA’s solicitor, also commented on this decision as causing “really serious implications for freedom of speech for people who want to write about subjects like this”

The current situation is that a temporary injunction has been allocated and a trial will decide who should take priority – the boy’s rights or the father’s memoir.

Some of the questions that arise from this ruling could be, how far do we value the public over the private? Stemming from this, how far are press injunctions, especially in the form of a ‘celebrity’ injunction, curtailing the right to freedom of expression? Where should we draw the line between deeming something inappropriate, and deeming something an act of censorship?

I’ll leave that ball in your court.

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