Clift v Slough Borough Council & Anor

Where a public authority relies on common-law qualified privilege to disseminate personal information, the court must consider its duties under the Human Rights Act 1998 and Article 8. An established relationship between publisher and recipient does not remove the need to assess whether publication was necessary and proportionate. Publication may be privileged for staff likely to have contact with the subject, but not for persons lacking a corresponding interest or where administrative convenience is the only justification. Conflicting Article 8 rights require an intense comparison of the rights claimed, their justifications and proportionality. The common-law approach to irrelevant defamatory matter is modified where the publisher is a public authority subject to Convention duties.

The claimant sued in libel over an email and a register entry describing her as violent or potentially violent. The defendants relied on justification and qualified privilege. The publications followed the claimant’s angry complaints about a council employee and were circulated to council staff, community wardens, trade union officials and partner organisations.

The Council was a public authority. The central issue was whether its duties under Article 8 and the Human Rights Act 1998 affected the common-law analysis of qualified privilege, including the scope of any duty to circulate warnings and the proportionality of publication.

1. The court held that the Council’s Article 8 duties were relevant to whether it had the interest or duty, and whether recipients had the corresponding interest, required for qualified privilege. The approach in Wood v Chief Constable of the West Midlands Police was followed. The court declined to apply the broader approach suggested by Kearns v General Counsel of the Bar to a public authority dealing with sensitive personal information.

2. The publication engaged the claimant’s Article 8 right to reputation. The legitimate aim of protecting council employees was accepted, and circulation was rationally connected with that aim. The decisive questions were necessity, proportionality and fairness. Where the rights of the subject and other persons protected by Article 8 conflict, the court must apply the balancing approach identified in Re S (A Child) (Identification Restrictions on Publication).

3. Publication to council employees in Trading Standards, Neighbourhood Enforcement and Community Safety, and their managers, was rational and proportionate because those employees were customer-facing and might encounter the claimant. Publication to departments such as Licensing, Food and Safety, Children and Education Services, and to trade union officials, was excessive. Those recipients lacked a sufficient need to know.

4. The Council owed no special duty to employees of its partner organisations. Circulation to those organisations was not justified merely because some employees might provide services to the claimant, and administrative convenience could not supply the necessary justification where no evidence of risk existed.

5. The court distinguished two forms of excessive publication. Sending material to a person lacking the necessary reciprocal interest meant that the occasion was not privileged. Irrelevant defamatory matter published on an otherwise privileged occasion ordinarily went to malice under Horrocks v Lowe. In the present public-law context, however, Article 8 required an objective assessment of whether the extent and content of publication were necessary and proportionate.

6. The jury rejected justification and malice and awarded the claimant £12,000 damages. Qualified privilege therefore succeeded only in relation to the identified customer-facing council staff and managers.