Explaining the Conceptualisation of Reputation in the Trinity of Torts: Defamation, Misuse of Private Information and Data Protection

Abstract

It is said that English law permits claimants to pursue different, overlapping causes of action in response to the same event provided each action protects a distinct value. Despite this, concern has been expressed about claimants’ ability to pursue misuse of private information and data protection claims in response to reputational harm, when historically these claims would usually sound only in defamation. The assumption is that this cause-of-action-shopping is illegitimate, as misuse of private information and data protection are being used to protect ‘reputation’ in a manner which evades defamation’s procedural and substantive limitations: the defence of truth, the one-year limitation period and the rule in Bonnard v Perryman. However, reputation is not a monolithic concept, and this assumption reveals that the protection of reputation in law is generally under-theorised. This thesis explores the eight dominant theories of reputation: reputation as an epistemic tool; reputation as a tool for upholding social norms; reputation as property; reputation as a function of human dignity; reputation as a tool for forming social bonds; and three forms of reputation as ‘honour’. It then examines the history, development and substantive requirements of defamation, misuse of private information and data protection to determine which conception of reputation, if any, is embodied in each. It argues that, for the most part, each cause of action protects a different conception of reputation. It therefore fits the principle that claimants may bring overlapping actions which protect distinct values. In this regard, the thesis shows how judicial dicta on abuse of process and the application of Bonnard v Perryman to non-defamation claims is unnecessary, lacks coherency and consistency, and is the result of judicial failure to properly theorise the role of reputation protection in law.