CLIFT v. Slough [2010] EWCA Civ 1484 is a significant ruling on the impact of the HRA 1998 on the law of defamation. It clarifies the relationship between the Human Rights Act 1998 and qualified privilege in cases involving public authorities, but it leaves a number of questions concerning the application of the Act in private proceedings.

The case itself derived from an unfortunate series of events in Slough. In essence, Clift observed a small boy destroying flowers in a public garden, she protested to the boy's mother, and the mother's male companion responded by trampling the plants himself. Clift reported this to the Council. Unfortunately, whilst making her complaint Clift ended up arguing with the Anti-Social Behaviour Co-ordinator and the “acrimonious conversation ended abruptly” (at [3]). Clift subsequently telephoned and wrote to the Council, expressing her desire to inflict physical violence on the Co-ordinator. The result of this was that Clift was placed on the Council's Violent Persons Register, and an email was sent disclosing this fact and the register itself to employees and officers of the Council, and Community Wardens. The register was also disclosed to a number of partner organisations.

Clift brought proceedings alleging that both the register and the email were defamatory. It was accepted that they were defamatory and the Council pleaded justification and qualified privilege. At trial the justification defence was rejected, and it was found that qualified privilege covered the disclosure to some, but not all, of the recipients, in part because the Council breached Clift's Article 8 ECHR right by disclosing the information so widely. On appeal the Council argued that as a matter of public law it was too onerous an obligation to require the Council to decide questions of proportionality, and that the Council's human rights obligations had no bearing on its private law defence of qualified privilege. It was unsuccessful on both grounds. Ward LJ gave the judgment of the Court.

The parties accepted that section 6 HRA 1998 obliged the Council to respect Clift's rights, that the Council had interfered with Article 8, but that it had pursued a legitimate aim, namely the “protection of the safety of all Council employees and…the employees of partner organisations” (at [32]−33]). The key issue was whether this interference with Article 8 was justified: was it necessary? The Council argued that the “judge erred in his balancing exercise by failing to have any or sufficient regard to the difficulties which confront local authorities in knowing to whom information can, and to whom it cannot be published” (at [33]). This was rightly given short shrift by the Court on the ground that “it cannot be disproportionate for a local authority to do what it is bound to anyway” (at [35]). Indeed, the question is whether it was necessary for the Council to interfere with the right, and not whether it was proportionate to require the Council to act compatibly. The Court also asserted that:

Thus public authorities have to demonstrate that each recipient either “truly” needed the information, or was “reasonably thought” to be at risk and this outweighed Article 8. This clearly is an administrative burden, but it would be seriously detrimental to human rights if public authorities could plead inconvenience and ignorance to curtail their obligations.

So what did this mean for the qualified privilege defence? The Court held that the law of tort does not exist in isolation from human rights law and that the duties of a public authority under the HRA 1998 shape the scope of qualified privilege. The Council was obliged by section 6 HRA to respect Clift's Article 8 right, thus once it had been found that the publications violated Article 8, the Council could no longer claim that they had a duty to disclose, and they could not rely upon qualified privilege. In essence the Court's decision meant that the Council could not use private law to evade its public law obligations. Indeed, the Court rejected the argument that Article 8 should not impact on qualified privilege because Clift could bring a free-standing Article 8 claim (at [46]); in part, because the Court recognised that “damages in defamation claims are bound to exceed damages (if any are awarded at all) for a breach of a party's human rights” (at [46]).

Thus it is clear that in defamation cases against public authorities the courts will interpret the law of defamation compatibly with the HRA 1998. What is not clear is whether this horizontal application of the HRA 1998 will also affect private party proceedings. Ward LJ asserted that “since section 6 of the HRA requires the courts to act compatibly with a Convention right, the court is bound to give effect to Article 8 if the point arises as it squarely does in this case” (at [46]). Does this mean that the courts will interpret the common law compatibly only where the defendant is a public authority, or does the courts' section 6 obligation apply to all cases? The crucial point, namely the extent of horizontal effect, is hidden in Ward LJ's opaque statement that the courts are bound “if the point arises” (at [46]). Indeed the court gave no indication of when the point arises. However, given that the HRA 1998 clearly impacts on the law of breach of confidence in private party proceedings, (see Campbell v. MGN [2004] UKHL 22, [2004] 2 A.C. 457), it would be rather odd if the law of defamation, which similarly relates to Articles 8 and 10 ECHR, were insulated from the HRA 1998 in private party litigation. It is hard to see what the basis would be for drawing a distinction. For answers to these questions we will have to await further jurisprudence, although given that both the law of defamation and the HRA 1998 are currently under review, legislation may come first.