Clift v Slough Borough Council

Qualified privilege depends on a reciprocal duty or interest, not merely on an established relationship. Where the defendant is a public authority, its public-law duties and Convention obligations must also be considered.

Publication engaging Article 8 must pursue a legitimate aim and be proportionate. Information damaging to reputation should be limited to people who need to know it or face a reasonably identifiable risk. Administrative difficulty cannot justify indiscriminate disclosure. If the Human Rights Act 1998 makes publication unlawful, the authority has no duty to publish and cannot establish the foundation for qualified privilege.

Jane Clift sued Slough Borough Council and its Head of Public Protection in defamation after her name was placed on the Council’s Violent Persons Register and circulated to Council employees, community wardens and partner organisations.

The High Court held that qualified privilege applied to some publications but not to circulation to other employees, community wardens, trade union officials or partner organisations. The jury rejected justification, found no malice and awarded £12,000 for the unprivileged publications.

The Council appealed. The central issue was whether the Council’s established relationships with the recipients were sufficient for qualified privilege, or whether the Council’s public-law and Convention duties made the wider publications unlawful.

1. Appeal dismissed. Ward LJ delivered the judgment, with Thomas and Richards LJJ agreeing.
2. At common law, qualified privilege rests on public policy and requires a legal, social or moral duty or interest on the part of the publisher, together with a corresponding duty or interest on the recipient. Reciprocity is essential. Toogood v Spyring (1834) 1 C.M. and R. 181 and Adam v Ward [1917] A.C. 309 stated the governing principles.
3. An established relationship may make privilege readily apparent, as explained in Kearns v General Council of the Bar [2003] 1 W.L.R. 1357. It is not, however, an automatic or off-the-peg answer where the defendant is a public authority. Wood v Chief Constable of the West Midlands Police [2005] E.M.L.R. 20 was binding and correctly required attention to the purpose and necessary extent of public disclosure.
4. Protection of reputation falls within Article 8 private life. The accepted aim of protecting staff safety was legitimate and rationally connected to the Register. Nevertheless, publication to recipients who were not likely to be approached and were not shown to be at risk was excessive. Proportionality required limiting disclosure to those who genuinely needed to know or could reasonably be regarded as at risk. Administrative difficulty could not outweigh the substantial interference with reputation.
5. Because the wider publication was incompatible with Article 8, it was unlawful. The Council was therefore under a duty not to publish the information to the supernumerary recipients. That duty displaced any alleged duty to warn them and removed the duty-and-interest foundation of qualified privilege. Section 6 of the Human Rights Act 1998 required the court to give effect to Article 8 within the defamation claim; the claimant was not confined to a separate human-rights action.
6. The proportionality inquiry concerned the categories of recipients and their need or risk, not the objective relevance of every word in the defamatory material. The reasoning in Horrocks v Lowe [1975] A.C. 135 concerned misuse of an already privileged occasion and irrelevant defamatory matter as evidence of malice, and did not govern this issue.

• Court of Appeal (Civil Division) [2010] EWCA Civ 1484: permission granted and the Council’s appeal dismissed.
• High Court of Justice, Queen’s Bench Division: Mr Justice Tugendhat ruled that qualified privilege applied to some publications but not to circulation to specified employees, community wardens, trade union officials or partner organisations. The jury rejected justification, found no malice and awarded £12,000.