In early October, the UK Court of Appeals issued an injunction that stopped publication of an unnamed memoir on the grounds that its content was “allegedly harmful” to the author’s 11-year old child. On December 9, the performing artist and father was granted permission to take his case to the UK Supreme Court to appeal the previous court’s decision — a decision which several advocacy groups, including English PEN, argued to be a violation of the author’s right to freedom of speech and expression.
Although the original Court of Appeals decision can be seen as the stepping stone towards this larger case before the Supreme Court, it is still chilling that the decision to stop publication based on its potential harm was made in the first place. As DLA Piper analyst Benjamin Simon recently pointed out on Lexology:
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.
The memoir is about the abuse that the author suffered as a child, and excerpts would undoubtedly be made available online and people would probably discuss the book on various media sites forums. It is even probable that the author’s young son might even come across this information, which was a central concern in the Court of Appeal’s decision. At what point, though, does protecting the welfare of our children from the world justify the limiting of creators’ freedom of speech and expression? Moreover, it can be asked how the citation and reference to this older 19th century court case might apply to freedom of speech issues today. Simon continues his legal analysis of the situation stating:
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”.
This is very much a case surrounding the very real and unfortunate experiences that the author had as a child. Furthermore, as both the author and advocacy groups have argued, the point of the book is to help those who have suffered similarly. As the English PEN has written previously:
The memoir deals with the author’s past experiences of sexual abuse and explores the redemptive power of artistic expression. It has been praised, even in court, as striking prose and an insightful work…Its publication is therefore clearly in the public interest and may encourage those who have suffered abuse to speak out.
This fact along with the violation of his freedom of speech which is protected under Article 10 of the European Convention on Human Rights is what is driving the author take his case to the Supreme Court and will be the core of his appeal. Although it is unfortunate that this case that the well-being of children is being used as the catalyst for preventing the publication of the book, it is important that these types of matters are being earnestly discussed and taken up in higher legal venues in order to ensure that freedom of speech and expression are protected.
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Contributing Editor Caitlin McCabe is an independent comics scholar who loves a good pre-code horror comic and the opportunity to spread her knowledge of the industry to those looking for a great story!