CofA applies rare 19th Century tort in granting injunction
The Court of Appeal has granted an injunction against the publication of a well-known performing artist's book to protect the rights of his son, not on the basis of misuse of private information but because publication would be likely to cause psychological harm to the son.
OPO v MLA  EWCA Civ 1277
The proceedings were anonymised by order of the court and the appeal was heard in part in private and otherwise subject to restrictions on publication of any material that might directly or indirectly identify the son.
MLA, a young performing artist, had written a semi-autobiographical book. Described by the judge in this case as "striking prose", the book gave accounts of the serious childhood sexual abuse he personally had suffered whilst at school and told of his traumatisation and subsequent episodes of severe mental illness and self-harm.
MLA had dedicated the book to his son by his first marriage, OPO, and sections of the book were written directly to him. OPO had lived in the UK until his parents' divorce and now lives abroad with his mother. OPO suffers from significant disabilities; he has a diagnosis of a combination of ADHD, Asperger's, Dysgraphia and Dyspraxia. Two psychologists suggested that the publication of the book revealing the accounts of the sexual abuse and mental illness suffered by his father would "be likely to exert a catastrophic effect on OPO's self-esteem and to cause him enduring psychological harm" and that "he might attempt to act out some of the descriptions" in the book.
OPO applied for an injunction, through BHM (his mother and litigation friend), restraining publication of the book on three grounds: i) publication would represent misuse of private information; ii) publication would be negligent, in a breach of duty owed by MLA to his son; and iii) publication would cause intentional harm, infringing the tort recognised in Wilkinson v Downton  QB 57, a rarely used principle of law where liability is incurred if a defendant wilfully does an act calculated to cause psychological harm.
The injunction was opposed by MLA, who contended that none of the causes of action had any prospects of success, the grant of an injunction could not be justified in accordance with s.12 Human Rights Act 1998 and the applicable law to any cause of action would be that of the country in which OPO lived, not the UK.
The judge at first instance refused the injunction, holding that none of the three causes of action argued had any real prospects of success. OPO appealed.
The Court of Appeal allowed the appeal and granted an injunction to restrain publication of the book.
Cause of action
Arden LJ agreed with the judge at first instance that OPO did not have a viable cause of action in misuse of private information, stating that the information likely to cause harm to OPO all related to MLA, and was not any misuse of OPO's private information. Arden LJ also held that there was no cause of action for a claim in negligence, stating that a duty of care could not be imposed on a parent towards his child. Arden LJ overturned the judge at first instance, however, by holding that OPO had a viable cause of action in the Wilkinson v Downton tort.
In establishing the tort, Arden LJ held that it was not necessary (as had been deemed in previous caselaw) that the communication had to be false. The tort required conduct that was unjustifiable in the circumstances.
Furthermore, Arden LJ held that intention could be imputed if the harm was likely to be caused and a defendant carried on doing the relevant act. She held that the communication did not have to be stated directly to OPO, it was sufficient that the relevant information was disseminated to the world at large provided there was a risk it would reach him. She noted that the book was dedicated to him and sections were directed at him; MLA could not say that he did not intend the book to reach his son and, given that OPO was described as "computer savvy", there was a risk he would see it.
Section 12 Human Rights Act 1998
Arden LJ held that an injunction would be granted. Section 12 Human Rights Act 1998 states that no injunction is to be granted unless the Court is satisfied that the applicant is 'likely' to establish that publication should not be allowed. Arden LJ held that OPO had demonstrated sufficiently favourable prospects of establishing that his claim under Wilkinson v Downton would be successful. The Court held that it did not need to consider whether OPO was 'more likely than not' to succeed; a lower standard was justified given the risk of serious harm to OPO if the injunction were not granted.
In reaching this conclusion the Court applied Cream Holdings v Banerjee  1 AC 253, which states that the Court is not compelled to apply the 'more likely than not' test and that it is entitled to have regard to other factors and apply the 'sufficiently favourable' prospects of success test in certain circumstances.
Choice of law
Arden LJ held that English law would be applied. The question of choice of law had to be determined in accordance with the Rome II Regulation. Article 4(1) provides the normal rule that the applicable law will be that of where the damage occurs. Article 4(3), however, provides that different law would be applied if it is "clear from all the circumstances of the case that the tort is manifestly more closely connected with a country other than that indicated by Article 4(1)".
As OPO lived in a foreign country, it was argued that the damage would occur in that country and that country's law would therefore govern the dispute. However, given that the book was written and published in the UK, the threat to cause harm emanated from the UK and OPO may be in the UK when he comes across the material, Arden LJ held that the claim was manifestly more closely connected with the UK than OPO's home country and UK law would therefore apply.
This decision is a rare application of the "obscure" and "seldom used" tort recognised in Wilkinson v Downton. Arden LJ extended the tort in so far as that the communication need not be false, the communication did not have to be directed at the 'victim' and intention may be imputed to the Defendant.
This case also sees the application of Cream Holdings by the Court of Appeal whereby the threshold required under s12 Human Rights Act may be reduced in circumstances where the consequences of publication would be especially serious.
Publishers should be cautious to bear this decision in mind when publishing material that it could be deemed to cause psychological harm to an individual, even when the material is truthful and it was not the direct intention to cause such harm – although the publication of the information must be "unjustifiable". It also serves as an example of where, when the potential harm of publication is especially severe, an injunction may be granted when there are only 'sufficiently favourable' prospects of success.
Update: MLA has since lodged an application for permission to appeal with the Supreme Court.