The case known as OPO v MLA was brought by Rhodes’s ex-wife, claiming that publication of the book would cause psychological harm to their son, who suffers from Asperger’s syndrome, attention deficit hyperactivity disorder, dyspraxia and dysgraphia. The memoir, to be published by Canongate, is an account of James Rhodes’s traumatic childhood in which he was the victim of sexual abuse and its impact on his adult life. He recounts the vital role of music and how it saved him from self-harm, addiction and suicide.
The High Court struck out the proceedings, arguing that there was no precedent for an order preventing a person from publishing their life story for fear of its causing psychiatric harm to a vulnerable person. But a temporary injunction was granted by the Court of Appeal until the case came to trial, on the grounds of an obscure Victorian case Wilkinson v Downton, in which a man who played a practical joke on the wife of a pub landlord was found to be guilty of the intentional infliction of mental distress.
English PEN, Index on Censorship and Article 19 intervened in the appeal at the Supreme Court as third parties, arguing that the Court of Appeal’s decision would have a chilling effect on the production and publication of serious works of public interest and concern.
In a robust defence of freedom of expression, the court ruled:
The only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it.
The Supreme Court criticised the Court of Appeal’s ruling in its judgment, stating that the terms of the injunction were flawed and voicing its concern about the curtailment of freedom of speech:
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 any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention.
Jo Glanville, Director, English PEN, said:
This an important judgment overturning an injunction that not only prevented the public from reading a powerful book of wide interest, but posed a significant threat to freedom of expression more broadly. It’s encouraging to see the Supreme Court’s clear and unequivocal support for free speech.
Jodie Ginsberg, CEO, Index on Censorship, said:
The decision of the Supreme Court is an important verdict for free expression. In particular we commend the court’s recognition that freedom to report the truth is a basic right protected in law and its reassertion of the right to produce material that others may find offensive,’ said
Thomas Hughes, Executive Director of ARTICLE 19:
ARTICLE 19 welcomes the decision. We have long argued that injunctions to prevent publication are inherently dangerous for freedom of expression and democracy, and must be recognised as prior-censorship which can only be justified in exceptional circumstances. This was not such a case and we appreciate that the Court properly weighted the right to freedom of expression with other interests.
This is a sensitive case, but the issue at its heart is the right to report about truth, including personal story of child abuse. This is clearly relevant not only in this particular case but also to on-going debates about institutional child abuse in the United Kingdom. It also directly relates to an artist seeking to explain his works and give the public a deeper understanding of it. We welcome that the Court confirmed that the author has a right to tell that story and the public a corresponding right to hear it.
In October, 20 leading writers, including David Hare, Michael Frayn, William Boyd and Tom Stoppard wrote to the Daily Telegraph to say that they were ‘gravely concerned about the impact of this judgment on the freedom to read and write in Britain’.