Kofoworola Adeolu David v Zara Hosany  EWHC 2787 (QB)
In a high-profile decision of the High Court (Queen’s Bench Division), Judge Moloney QC dismissed a libel action brought by Mr David, a Governor of a UK public authority, against another Governor, Ms Hosany. The allegedly defamatory material included allegations of sexual harassment.
The Court upheld the principle that complaints, properly made and without malice, are protected from defamation actions (the common law defence of qualified privilege). The exception to the privilege borne from article 8 of the European Convention of Human Rights (ECHR) and section 6 (1) of the Human Rights Act 1998, being a person’s right to respect for “private and family life, home and correspondence”, did not apply as the complaints were made in a private capacity. The judgment provides necessary encouragement to people to report incidences of sexual harassment in the workplace.
The allegedly defamatory publications contained details of incidents in which Ms Hosany claimed that Mr David “[made] a pass” at her and, “motivated by his indignation at her having rejected his advances”, bullied and harassed her.
Ms Hosany admitted that the three alleged defamatory publications were written by herself in the course of her complaint against Mr David. Two of the three documents were written complaints against Mr David and the third document was an email sent by Ms Hosany to officers dealing with her complaint and raising concerns about an unnamed person. The documents were subsequently reviewed by a select number of people in the NHS Trust (where both Governors were employed).
To the allegations that the publications were defamatory, Ms Hosany pleaded the defence of privilege. Mr David responded with a plea of express malice together with contending that the publications were not privileged as a result of Ms Hosany’s position as a “public authority” under the Human Rights Act 1998 and because the publications related to private matters.
Judge Moloney dismissed Mr David’s libel claim on the basis that each publication was protected by the defence of common law qualified privilege (privilege) given that the alleged defamatory documents were published in the making and handing of a complaint, to the proper authorities and without express malice.
Significantly, the judgment considers that the categories of privilege remain open and that this particular branch of privilege is of increasing importance in modern conditions; the privilege defence is recognised as required to advance the common convenience and welfare of society and encourage free communication on suitable occasions.
There are a number of key principles to be taken away from the judgment of Judge Moloney:
A publication can be defamatory even if the name of the person bringing the libel action is not made explicit.
Judge Moloney determined that even though Mr David’s name was not mentioned in Ms Hosany’s email (one of the publications), the initial email in the chain was from Mr David himself and was enough to identify him as the unnamed person later complained of. In addition, His Honour further held that any defamatory document must be “read in its context”; and as Ms Hosany’s earlier email referred to harassment, intimidation and her anxiety towards Mr David, a reasonable reader of the whole string would view the later email as a defamatory allegation against him.
2. The making and handling of complaints to the proper authorities is a recognised common-law qualified privilege
The common-law qualified privilege allows defamatory documents to be published in circumstances where the publisher was not actuated by malice and had a legal, social or moral duty or interest to make the publication, and the publishee had a corresponding duty or interest to receive it. Judge Moloney recognised that the categories of qualified privilege were not closed and found qualified privilege exists in the context of making complaints to proper authorities, especially about public officers. His Honour held that “a person who makes … a complaint has a recognised interest in having it considered and determined; and the receiving body has a corresponding interest, and usually a corresponding duty, in doing so”.
Each of the three defamatory documents published by Ms Hosany in her complaint to the responsible officers, were found to be made on occasions of common-law qualified privilege.
Judge Moloney further ruled that the scope of the privilege is not confined to direct publication between the complainant and the person responsible to determine the complaint. It also extends to any “ancillary” publications reasonably required to carry the privileged purpose into effect.
In the present case, privilege not only applied to the communication between Ms Hosany and her complaint case officers, it also applied to the staff assisted in the process, outside professionals called to assist with her complaint and an individual that supported the meetings relating to her complaint against Mr David. It should be noted that His Honour qualified the scope of privilege applicable to ancillary persons by adding that the ancillary persons must have a “sufficient link” to the recognised privilege or would otherwise fall outside its scope.
3. The limitation to qualified privilege applicable to public authorities
An exception to the privilege applies to public authorities responsible for defamatory publication in circumstances where the privilege is incompatible with a claimant’s Article 8 ECHR rights being a person’s right to respect for “private and family life, home and correspondence”.
The allegations about Mr David’s sexual behaviour and personal relations with Ms Hosany as published to third parties engaged Mr David’s Article 8 rights. If the libel action had been brought against the public authority itself then the privilege would have applied. However, as the defendant was Ms Hosany consideration was given as to whether she was acting in her capacity as a public authority or whether her acts were private in nature. His Honour found that notwithstanding that the alleged harassment was occurring as part of her public function as Governor, the act of publication was not done in the discharge of her public office. Therefore, the acts of publication were acts of a private nature that were not captured by the principles of Clift v Slough Borough Council  EWCA Civ 1484.
4. Making complaints based on true and fair belief is not an act of express malice
To rebut Ms Hosany’s privilege defence, Mr David was required to prove that the alleged defamatory publications were actuated by Ms Hosany’s express malice. To do so, His Honour determined that it was crucial for the Court to decide if the incident complained of actually occurred, as it would give an indication of whether the complainant honestly believed in the truth of his/her complaint.
After taking into account the undisputed facts relevant to the incident, the extensive circumstantial evidence and context (including the general probability or implausibility of each account), it was determined that, on the balance of probability, Ms Hosany’s version of events occurred and that she honestly believed her written complaints were true and fair when she made them. Therefore, Mr David failed to prove that Ms Hosany had acted in express malice when making her complaints.
Despite global implementation of legislation designed to deter offending behaviour, sexual harassment remains a major issue in workplaces worldwide. As an example, the Australian Human Rights Commission, Working without Fear: Results of the 2012 Sexual Harassment National Telephone Survey (2012) showed that one in four women are sexually harassed in the workplace.
The “Me Too” and “Time’s Up” movements spread virally on social media in late 2017 and became part of an international public pronouncement against experiences that people, especially women, kept silent, predominately due to fear and shame.
Through the social media movements, awareness has been raised in relation to the magnitude of sexual harassment and assault occurring in our communities, homes and workplaces.
This High Court judgment provides important common law support for persons speaking out by recognising the protection of the defence of privilege for victims making genuine complaints involving relevant disclosures to appropriate persons where perpetrators may otherwise seek to use defamation or similar actions (or the threat of those actions) as a means to intimidate or prevent the making of complaints.
As a result, this judgment provides necessary encouragement to people to report incidences of sexual harassment in the workplace.
However, in relation to public authorities, the judgment provides a word of caution if a complaint is made which might be within or cross-over with the exercise of a public authority’s public function.
A final thought, according to Australian Human Rights Commission’s report on Recognising and responding to sexual harassment in the workplace: Information for employees, 45% of workplace sexual harassment stops after a complaint or report is made.
The full text of the decision is available here.
Martin Irwin (Partner), Lee Pascoe (Special Counsel), Laura Simonds (Associate) and Sophia Shen (Graduate) at Norton Rose Fulbright.