On 9 December a well-known British performing artist was granted permission to take his case to the Supreme Court, where he will appeal the Court of Appeal’s decision in OPO v MLA & STL, reported here in October 2014.
In the case the Court of Appeal granted the artist’s ex-wife an injunction, barring him from publishing a semi-autobiographical book about the sexual abuse he suffered as a child. While the unnamed performing artist said the book intended to help other victims come forward, the injunction was granted to protect their young son- the evidence of two child psychologists suggested that he would be at risk of serious psychological harm were he to read sections of the book.
In a decision that dismayed publishers and freedom of speech activists, the Court invoked the tort of deliberate infliction of harm recognised in the 19th century case Wilkinson v Downton, holding that a defendant would be taken to intend the harm by the combination of it being sufficiently likely that such harm would be suffered as a result of the defendant’s behaviour and his deliberately engaging in that behaviour. Before this, the rarely cited decision in Wilkinson v Downton had been invoked only in cases involving false words and threats. As the artist’s lawyers argued: “the decision extends the tort into an area where it has not previously been used in any common law jurisdiction”.
The artist’s appeal to the Supreme Court will be based on the argument that the book contains only true material, that the son’s rights are not been infringed, and that the artist’s freedom of speech, guarenteed under Article 10 of the European Convention on Human Rights, is being infringed.