Bates Wells: Publication of Disciplinary Decisions – Are There Any Issues?

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Our partners Bates Wells consider issues that may arise around the publication of disciplinary decisions.

How would you defend the publication oif a disciplinary decision, in the event of a challenge? We consider some possible options below.

Defamation

The most likely challenge is that your publication is defamatory. “Defamatory” means that your statement tends to lower the person referred to in the opinion of (reasonable) others or is likely to adversely affect that person in others’ (reasonable) estimation. There are a number of ways to fend off such a challenge. The most relevant options are as follows:

  1. True – you may be able to prove that the statement you made is true. It is not necessary for every word to be true as long as the “sting” of the words is true. If the decision is the result of your own proper process, it will be easier to be confident that your statement is true than if you are publishing the decision of another body. In the latter case, it may be sensible to limit your statement to the fact that “x organisation has made y finding against z”. Whether a statement is true is often highly contentious, and you may end up litigating to prove it. Therefore, it may also be advisable to have another defence in mind.
  2. Consent – you may be able to show that you have the individual’s consent to publish disciplinary findings about them, if they have signed up to your rules and your rules state that disciplinary findings will be published. This defence will not apply to publication of findings by third parties, who cannot rely on your right to publish decisions about your members under your rules.
  3. “Statutory reporting privilege” – you may be able to rely on “statutory reporting privilege” if you are reporting the decision of “an association formed for the purpose of promoting or safeguarding the interests of a trade, business, industry or profession, [or persons carrying it out /engaged in it]”, as long as:
    1. The association’s constitution allows it to exercise control or adjudicate over the matters concerned;
    2. Your statement is a “fair and accurate report”;
    3. Your statement is without malice;
    4. Your statement relates to a matter of public interest, the publication of which is for the public benefit; and
    5. If requested, you publish a reasonable statement of explanation (reply) from the person concerned.
  4. “Common law privilege” – you may be able to claim “common law privilege” over your publication, if you have an interest or duty to report the decision, and the person receiving it has a corresponding interest or duty to receive it, and provided there is no malice. This covers duties under legislation and contracts; but also some social and moral duties. However, it can be difficult to establish a reciprocal interest for the person reading the publication if you are relying on a social or moral duty for publication.

The law of defamation is just one way disgruntled individuals may seek to challenge the publication of disciplinary decisions. Other routes of challenge include:

  • Misuse of confidential information – for this, a complainant would need to be able to show that the information was “of a nature and obtained in circumstances such that any reasonable person… ought to recognise that it should be treated as confidential.” The 2009 case of Napier shows that this can be quite difficult for a claimant to establish in the ordinary regulatory context – in that case a Law Society complaints scheme was not confidential, even though the investigation findings were not generally published. It is important to note, however, that the case might have been decided differently if the information concerned was innately private – for example if it related to the solicitor’s health.
  • Article 8 of the European Convention of Human Rights – Article 8 extends to the protection of reputation provided that “an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life”. Breaches of Article 8 are capable of justification.
  • Contempt of court – particular attention will need to be paid to the publication of disciplinary decisions if there are still active court proceedings in relation to the decision – for example if there is an ongoing criminal trial against the individual. This is because there is a risk of your publication interfering with the course of justice in the proceedings, which would be contempt of court.
  • Fairness towards third parties – the recent decision in Lewin indicates that where the publication of a regulatory decision may adversely affect the reputation of a third party who has not been invited to make representations, it is prudent to include a disclaimer to the effect that it would not be fair to treat any part of the relevant decision as findings made against the third party. A contemporary decision in Taveta Investments demonstrates that, even where criticisms of third parties are capable of being defamatory, there is a very high bar to granting an injunction against publication in public law cases.
  • Data protection – it will also be necessary to consider the data protection regime before publishing decisions relating to identifiable individuals. In particular, it will be important to consider whether – if you are a data controller or processor – you have lawful grounds under the GDPR and the Data Protection Act 2018 to publish personal data.

This blog post is intended to be a brief introduction to some of the issues surrounding publication of disciplinary decisions. If in doubt, it is always a good idea to seek advice.

Authors:

Melanie Carter (partner) and Sarah Court-Brown (consultant), Bates Wells Braithwaite.

Melanie and Sarah provide legal advice to a wide range of membership organisations. To learn more about the issues in this blog, please contact Melanie or Sarah.

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