Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Supreme Court of the United Kingdom discharged the injunction preventing publication of Rhodes’ book, because an injunction will not be issued to prohibit the publishing of a book for the potential effect the book may have on one reader — this infringes too greatly on the freedom of speech of the author. Further, the Court dismissed the tort of intentionally causing physical or psychological harm because the mental element cannot be established by recklessness.
This case involved an autobiography written by a father, James Rhodes, involving sexual assault and his own psychosis. The mother, acting on behalf of the child (OPO), sued to obtain an injunction preventing publication of the autobiography, claiming that it would inflict extreme emotional distress on OPO were he to ever read it.
The lower court dismissed the application on the basis that there was no cause of action in tort law. OPO appealed and the court of appeal held that “there was no claim in misuse of private information or in negligence, but that the claim for intentionally causing harm should go for trial.” The court of appeal granted an interim injunction on the basis that intention to cause harm could be imputed to Rhodes even if that intention was indirect, and a trial date was set. Rhodes appealed to the Supreme Court of the United Kingdom.
Lady Hale and Lord Toulson delivered the opinion of the Court. The Supreme Court of the United Kingdom noted that this case raised important questions concerning freedom of speech versus the limits of liability. The willful infringement of the right to personal safety (by causing physical or psychological harm) has been recognized as a tort by the English courts and requires conduct, the proper mental state, and a resulting harm.
The court of appeal ruled that the publishing of the book would be indirect conduct harming OPO, but the Supreme Court disagreed, stating that the “freedom to report the truth is a basic right to which the law gives a high level of protection.” Rhodes’ autobiography is addressed to the public at large, and does not specifically identify OPO, nor does the publication mention OPO besides in the dedication of the book. Further, “a right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively.” Therefore, the court of appeal erred in limiting the language that Rhodes could use in his autobiography.
Next, the Court turned to the element of mental state. The court of appeal found that the necessary intention could be imputed to the father. The Supreme Court disagreed and set precedent by abolishing the imputed element of the tort of intentionally causing physical or psychological harm. The Court found that recklessness could not be included in the definition of the mental element of the tort because it would set too broad of a claim, allowing people far outside the scope of intended harm to sue for an imputed mental state. Therefore, the Court reversed the court of appeal and reinstated the ruling of the trial court, discharging the interim injunction and striking the tortious claim.
Lord Neuberger, wrote a concurring opinion. The concurrence went a step further arguing that a book should not be enjoined form publication simply because of its potential effect on a specific reader. “[F]ree speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.” U.K., Redmond-Bate v. Dir. of Public Prosecutions,  7 BHRC 375, para. 20. The concurrence suggested taking a second look at the elements of the tort itself to ensure that it is not infringing on more free speech than necessary.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expanded expression by denying an injunction to prohibit publication of an autobiography because of its potential effect on one potential reader. The Court also held that intent or malice could not be imputed to a speaker based on recklessness.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“The defendant caused panic in a theatre by barricading an exit door and extinguishing the gas lighting. In the resulting confusion several people were seriously injured. His conduct was intended as a prank, but any sane person would have realised that it was dangerous. The court upheld his conviction for unlawfully and maliciously inflicting grievous bodily harm … .” p. 16.
Injunction against threatening phone calls.
Provides a remedy in damages for a course of conduct amounting to harassment.
“[A] case of illness allegedly caused by a slanderous imputation of unchastity to a married woman.” p. 17.
Case significance refers to how influential the case is and how its significance changes over time.
Decisions of the Supreme Court of the United Kingdom are binding on lower courts in the U.K.
Let us know if you notice errors or if the case analysis needs revision.