The Supreme Court’s decision today allowing publication of James Rhodes’ shocking but ultimately uplifting memoir (Instrumental, Canongate) is a major boost for freedom of expression. The court has thrown out an injunction imposed by the Court of Appeal which had not only barred publication of the book but also prevented the identification of anyone involved in the case.
The Supreme Court has now said loud and clear that "freedom to report the truth is a basic right", that James Rhodes has the right to tell the world about what he has been through and that there is "a corresponding public interest in others being able to listen to his life story in all its searing detail".
The basis for the ban on the book was neither of the usual legal suspects, libel or misuse of private information. Instead it was the obscure tort of intentionally causing harm, derived from a Victorian case called Wilkinson v Downton (1897) in which a hoaxer was held liable to his victim for mental injury caused by a practical joke gone wrong. In its much-criticised judgment, the Court of Appeal decided this dusty precedent applied to James Rhodes’ book and potentially to any other publication to the world at large.
It is very important that people are able to tell the truth about themselves, but that right is empty or at most merely conversational without publishers willing to take the risk of bringing edgy material to readers. Canongate has stood by its author in this case through 14 months of hard-fought, expensive, nerve-racking litigation. An independent publisher of limited means, it has backed its author and its editorial conviction with its own money. One wonders whether a bigger corporate publisher with wider gaps between senior executives and editorial would have been prepared to put so much at stake.
These are tough times for serious non-fiction. There is less hard-edged investigative journalism and many publishers remain reluctant to take on books which could fill that gap. Even though libel law has been relaxed by the Defamation Act 2013, self-censorship has a grip on the collective memory and there is a tendency to over-estimate the risk of taking on punchy but publishable books. The basis for such worries has been reduced by today’s judgment. If the injunction had remained in place, the task of clearing books for publication would have been almost impossible as it would have meant anticipating risks and claimants which were not even visible in the text.
It took more than a year to get the right decision but in the end it was worth it. The Supreme Court’s support for freedom of expression has proved more than a match for the ingenuity of the case against publication. This decision should give real encouragement to editors willing to publish real non-fiction, even if they don’t want to spend 14 months with their lawyers in order to do so.
Martin Soames is a partner at Simons Muirhead & Burton, solicitors for Canongate Books. He was a commissioning editor at Penguin before training as a lawyer
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