Hughes v Risbridger & Ors

Qualified privilege is not lost merely because a communication contains inaccurate language, careless reasoning or excessive zeal. The claimant must prove malice, ordinarily by showing that the defendant lacked an honest belief in the truth of the defamatory words, was indifferent to their truth, or was predominantly motivated by an intention to injure. A mistaken attribution of an admission will not defeat the defence where the defendant honestly believed the substantive allegation to be true. A claim for damages under the Data Protection Act 1998 requires both damage and distress under section 13(2)(a); distress alone is insufficient.

The claimant, an airline employee, sued his employer’s security investigator and the employer for libel concerning an internal email stating that he had admitted stealing miniature bottles of whisky and had been lucky to avoid a police caution. The publications were accepted to be qualifiedly privileged. The claimant also sought damages under the Data Protection Act 1998, alleging unlawful processing of personal data. The issues were whether the defendant was actuated by malice, whether the publication was justified or fair comment, and whether the statutory claim disclosed actionable damage.

1. Libel and justification. The defendants failed to establish justification. On the balance of probabilities, the claimant genuinely believed that he was entitled to bring twelve miniatures from Hong Kong, had intended to pay, and had forgotten to do so after the relevant bar closed.
2. Qualified privilege. The recipients had corresponding legitimate interests in receiving the internal security report. Applying Horrocks v Lowe [1975] AC 135, the claimant had to prove malice. Malice required proof that the words were published without an honest belief in their truth, with indifference to truth or falsity, or with a dominant motive to injure. The defendant honestly believed that the claimant intended to steal because the quantity exceeded the permitted allowance. His inaccurate statement that the claimant had admitted theft, and his imprecision about where the interview occurred, did not establish malice. Qualified privilege would be illusory if defeated by inaccurate language or sloppy reasoning.
3. Fair comment. The court doubted whether the email concerned a genuine matter of public interest and considered that the principal sting was factual rather than comment. It was unnecessary to reach a final conclusion, although the defendant would not have been found malicious on this basis either, having regard to Cheng v Paul [2001] EMLR 777.
4. Data protection. The email was not shown to be recorded in a relevant filing system or to form part of an accessible record within section 1(1) of the Data Protection Act 1998. Further, section 13(2)(a) required damage as well as distress. The claimant proved neither pecuniary loss caused by the email nor any loss caused by the alleged processing. His employment consequences resulted from his breach of the workplace rules, not from the email.
5. Disposition. The defences of qualified privilege and the statutory claim succeeded. The defendants were entitled to judgment.

First-instance judgment. No prior appellate decision is stated in the judgment.