OPO v MLA & Anor 
The case of OPO v MLA & Anor  EWCA Civ 1277 relates to a book written by the Claimant’s father. In that book he had written about his experiences at school where he had been subjected to sexual abuse. He had described writing about those dreadful times as containing a message to others who had likewise suffered, to be able to open up to what had happened to them.
The Claimant was his son by a previous marriage which had been dissolved. He lived with his mother in another country referred to as “Ruritania” in the judgment. He suffered from ADHD, Aspergers, Dysgraphia and Dyspraxia and two psychologists submitted that in their opinion the revelations made in his father’s book would cause him long-lasting psychological problems.
The son, through his litigation friend, sought an injunction to stop the book being published which was initially refused by Mr Justice Bean and then went to the Court of Appeal before Lady Justice Arden and a panel.
Counsel for the son contended that an injunction should be granted and put forward three different reasons why, as follows:
- That it was a misuse of private information. This failed as it was the father’s information.
- By publishing the book this was potentially damaging to his son and thus negligent in terms of his obligation of a duty of care to his son. This was rejected as no such general legal duty of care is owed by a parent to a child.
- That it was contrary to the tort of intentionally inflicting mental suffering, if this book was published. It was this point that secured the injunction for the son.
The case of Wilkinson v Downton (1897) involved a man informing a woman, as a practical joke, that her husband had been in a serious accident, the result of being told this left the woman in deep shock. It was found that she was entitled to compensation for the damage psychologically caused to her.
The Judges, on considering the case of Wilkinson v Downton and how it applied to these circumstances, held the following:
- In Wilkinson v Downton it was a result of a practical joke that caused the shock to the
Woman. In all previous cases the communication had been false but in this case Lady Justice Arden held that the disclosure did not have to be false.
- In all previous cases the communication had been directly to the claimant however it was held that as the son had access to the internet and had a good knowledge of computers where he could find out all such information, Lady Justice Arden held that the communication did not have to be addressed specifically to the son. However, the Judge did note that the book was dedicated by the father to his son.
- The principle in Wilkinson v Downton related to conduct which usually involved situations where the conduct of the individual had been of an extreme nature. Lady Justice Arden considered if this principle was applied to circumstances where the communication had not been of a false nature then careful thought must be given as to whether the communication had been for a good reason and at the same time giving consideration to an individual’s Article 10 Human Rights.
Article 12 of the Human Rights Act 1998 had to be considered
(1) ….. if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code….
The court had to determine that it was likely that the Claimant would succeed at trial before interim relief could be granted. But Arden LJ said that this did not mean that the boy had to be more likely than not to succeed because, she said,
“The important point is that, if publication is not restrained, then it will be impossible “to put the genie back in the bottle” if OPO succeeds in showing that there are parts of the Work that are seriously damaging to him. So this is a case in which the court is justified in applying a lower standard than more likely than not.”
The boy did not live in the UK so the appropriate applicable law had to be considered. She was prepared to proceed on the basis that foreign law was the same as UK law. Arden LJ held that it was likely that in any event the matter was manifestly more closely connected with the UK for the purposes of Article 4(3).
She considered that the work had been written here and was to published within the jurisdiction and that the threat to cause harm came from here.Further he might be in London when he came across the material. As a consequence English Law could supplant Ruritania law.
“OPO has sufficiently favourable prospects on the facts of this case of establishing at trial his claim under Wilkinson v Downton that the publication by the respondents of the Work in its present form will constitute intentional conduct causing him psychiatric harm to justify an injunction restraining publication of parts of the Work pending trial.”