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Supreme Court memoir judgment a ‘victory for freedom of speech’

Judges permit publication of pianist James Rhodes' Instrumental

20 May 2015

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The Supreme Court has unanimously allowed a memoir by a British classical pianist detailing his experiences of sexual abuse to be published, despite objections from the artist's ex-wife.

In March 2014, in a case that until today was only known as OPO v MLA, James Rhodes' ex-wife applied for a ban on his memoir.

She was worried his work, Instrumental, could cause psychological harm to their son, who has been diagnosed with Asperger's syndrome, attention deficit hyperactivity order, dyspraxia, and dysgraphia.

In October 2014, the Court of Appeal found that a claim for intentionally causing harm under the tort in Wilkinson v Downton should go to trial. The court also imposed the controversial ban on publication. The decision gagged Rhodes from repeating parts of the book, for example, 'graphic accounts of…sexual abuse he suffered as a child', and forced the memoir to anonymise the parties. The decision caused concern among freedom of speech advocates and writers.

While the memoir is primarily about Rhodes' career, it also describes his experiences of childhood sexual abuse, but explained how music, and speaking out about the abuse, helped him in his recovery. Having already written about his past, Rhodes and his publisher, Canongate Books Ltd, defended the claim.

Extending privacy laws

Speaking ahead of the Supreme Court decision, Robin Shaw, a media law specialist at Gordon Dadds, warned a ruling in the ex-wife's favour would set a dangerous precedent for freedom of speech and extend privacy laws 'by the back door'.

'If the court prevents the book's publication, the decision will be regarded as a huge interference in the right to publish material about oneself, which in this case will not only have some general public interest but may also help others who may have had similar problems.

'It would be seen as a further limitation of the right to freedom of speech and an extension of privacy laws by the back door. If the court allows publication it will be seen as an important victory for freedom of expression'

The Supreme Court allowed Rhodes' appeal, saying: 'The only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail.'

In addition, the court decided to quote, at length, from the book itself, including some of the very passages to which objection was made.

Public interest

Commenting on the judgment, Rhodes said: 'Clearly this is a victory for freedom of speech. More importantly it is a powerful message to survivors of sexual abuse. There is already too much stigma and shame surrounding mental health and sexual abuse, and although I am horrified that it has taken 14 months of overwhelming stress and expense, I am relieved that our justice system has finally seen sense and not only allowed me to tell my story but affirmed in the strongest possible way that speaking up about one's own life is a basic human right.

'I hope the book will help fellow survivors of rape find the courage to speak up. And I hope it will inspire those in pain to find solace in music and togetherness.'

Rhodes' lawyer, Tamsin Allen, partner and head of the media and information law team at Bindmans, added: 'The Court of Appeal's decision was derided by lawyers and free speech advocates and represented a serious threat to writers, journalists, editors, and publishers. In overturning the injunction, the Supreme Court has reaffirmed the fundamental importance of the freedom to speak the truth, even if the truth is brutal or shocking.

'It has limited the ways in which true facts can be subjected to injunctions in the future, and made sure that a case like this one can never happen again by abolishing elements of the tort on which the claim was based. As the Supreme Court has recognised, this memoir is an important work whose publication is plainly in the public interest. Secrecy has no place in this story.'


John van der Luit-Drummond is deputy editor for Solicitors Journal | @JvdLD

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