In order to contextualise my answers, I should explain my interest in this inquiry -- I am an academic at the School of Law, University of Leeds, UK, with a particular research interest in the free speech/privacy dichotomy, especially as it relates to press freedom (www.law.leeds.ac.uk/about/staff/wragg). Although I appreciate that the proposed statutory tort might apply to situations beyond those involving the press, my submission is mainly concerned with the potential effect of this tort on press freedom. Moreover, my purpose is to consider the proposal in light of the UK's experiences of the misuse of private information tort, which IP43 refers to as a potential model. As the ALRC recognises, this tort derives from the House of Lords decision in Campbell v MGN Ltd  2 AC 457 and which, for brevity, will be referred to as the Campbell tort in this submission.
I take it from IP43 and the previous inquiries referred to in the report that the mischief, or one of them, that the proposed tort would seek to correct is that of the press (assuming the term has a sensible meaning) intruding into the private lives of not only the rich and famous but also those of ordinary members of the public who have, for whatever reason, piqued their interest. It seems to me that the proposed tort might also tackle the problem of internet or social media 'trolling' whereby individuals are subjected to a campaign of abuse by other social media users. Instances of 'trolling' may follow from the privacy-invading expression by the press or may be independent of it.
The UK's experience of the Campbell tort has brought the parameters of the right to respect for privacy under Article 8 of the European Convention on Human Rights into sharp focus and has provided much debate, both in and outside of court, on the value of privacy but less discussion, it is submitted, about the comparative value of privacy-invading expression. Although both rights (Article 8 and the Article 10 right to freedom of expression) are said to be of equal significance, the framework of the tort contributes to this skewed approach through the threshold test and through an apparent reluctance to engage in close scrutiny of the free speech claim once a public interest in the expression has been established. I set out the problem with this approach in more detail below. I mention this here because, it seems to me, there is a similar risk of the Australian debate being similarly skewed in favour of free speech arguments -- of too readily accepting or else assuming that free speech is jeopardised by the introduction of a privacy tort -- through the close scrutiny of the privacy interests at stake and lesser examination of the free speech claim. It also seems to me that legitimate concerns about spurious privacy claims and damage to press freedom can be accommodated through the process of greater scrutiny of and sceptism about the value of privacy-invading expression.
Although there are many ways in which the value of free speech may be expressed, it is often said that the greatest protection under Article 10 is reserved for political expression or rather expression that contributes to participation in a democratic society (see, eg, E. Barendt, Freedom of Speech, (2nd edn, OUP, 2005), H Fenwick and G Phillipson, Media Freedom under the Human Rights Act, (OUP, 2006), D. Harris, M. O'Boyle & C. Warbrick, Law of the European Convention on Human Rights, (2nd edn, OUP, 2009)). The UK jurisprudence attests to a broad reading of this value such that it may be doubted how useful a description it provides of the privacy-invading expression that has been protected. For example, it is difficult to see what contribution to democratic participation is made by expression exposing the extra-marital affair of a professional footballer (see, eg, Terry v Persons Unknown,  EMLR 16; Ferdinand v MGN Ltd  EWHC 2454 (QB)).
To my mind, there is no better exposition of the value of free speech than that found in John Stuart Mill's essay On Liberty. Moreover, it seems to me, Mill's concerns about liberty also neatly fit the paradigmatic case of privacy intrusion. Paraphrasing, it will be recalled that Mill's chief concern in On Liberty is the serious threat to individual autonomy or individualism caused by the coercive practices of what Mill calls the tyrannical majority and, thus, Mill argues that no one -- including the state -- is authorised to use coercive practices to curb the discovery of different ways of living where an individual's behaviour is self-regarding or where it is other-regarding but does not cause serious harm to others. It seems to me that this remains an apt description of the privacy interest that the Campbell tort and the tort proposed by ALRC should be most concerned to protect -- the right of an individual to live their life free from coercion unless their behaviour causes harm. In the paradigmatic case, privacy-invading expression by the press takes the form of caustic and unwanted press scrutiny of an individual's lifestyle and, usually, has an obvious moral dimension. Such intrusion causes acute anxiety, embarrassment, shame or guilt and may be said to amount to coercion not least because stringent press criticism influences and determines the opinion that others will hold about the claimant. Newspapers, therefore, have the power to create opinions that are damaging and long-lasting (even permanent) which have a deleterious effect upon established and future relationships not only with friends and family but also business associates and employers. In the extreme, such privacy-invading expression is intended to coerce the target to conform to the views of the moral majority or else suffer public humiliation until such conformity is achieved. The press is a powerful weapon for democracy – if it were not, it could not fulfil its mandate as the fourth estate – and that weapon ought not to be used for the wrong reasons or aimed at the wrong people. It is right that the state should intervene where that power is misused. To put it another way, if the press is a watchdog then it must be trained to bite the burglar and not the postman.
Applying Millian principle, the state is justified in interfering with privacy-invading expression because it protects the individual from these coercive practices whilst penalising the expression for its harmful consequences. There are three safeguards, though, for freedom of expression or press freedom. Interference is warranted only where, first, serious harm is caused to the individual, and secondly, where the expression constitutes coercion rather than persuasion. Thirdly, coercion is justified where the individual’s behaviour is seriously harmful. Put simply, a newspaper is justified in intruding into the private life of a citizen where it can show that the behaviour exposed is harmful to societal interests or, rather, that non-exposure would be harmful. This accounts, I think, for our intuitive sense that newspapers should be free to expose acts of corruption and criminality by public figures and non-public figures where it can be shown that these acts impact on society specifically.
Approaching the problem this way is valuable, it seems to me, because a) it lessens the difficulty of trying to articulate the reason why either privacy or privacy-invading expression is valuable; b) it better locates the public interest in protecting certain acts of individualism from hostile press scrutiny but allowing press intrusion in respect of other acts and c) it avoids the difficulty of trying to determine which is more valuable, privacy or free speech.
Of course, I do not pretend that this is a problem-free approach. It requires careful consideration of the point at which legitimate persuasion becomes illegitimate coercion. To some extent, though, this is recognised by the fact sensitive nature of each claim in which the nature and impact of the expression is paramount to determination of the claim. It should be determined according to the effect of the expression upon the claimant. Once this is established, the question for the court to ask is: what is so harmful about the claimant’s behaviour (and, more particularly, how does it harm society?) that the press ought to be able to discuss it using coercive means?
There are numerous ways in which privacy may be interfered with, as the ALRC recognises. The European Court of Human Rights has interpreted Article 8 in such a way that it defies narrow definition. Thus it has been found that private life applies to: covert surveillance inside the workplace (Halford v UK (1997) 36 EHRR 719); extensive restrictions on future employment (Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104); an applicant's sex life (X & Y v Netherlands (1985) 8 EHRR 235); the use of corporal punishment (Costello-Roberts v UK (1993) 19 EHRR 112); sexual orientation (Dudgeon v UK (1981) 4 EHRR 149); personal identity (Sutter v Switzerland (1979) 16 DR 166); physical and psychological integrity (Pretty v UK (2002) 35 EHRR 1); surveillance (Peck v UK (2003) 36 EHRR 719); collection of data about an individual, such as fingerprinting by the police (X v UK (1982) 30 DR 239); effective enjoyment of a social life (Von Hannover v Germany (2004) 43 EHRR 1). This is just a snapshot of the diversity of judicial interpretation of the word 'private life'. Similar diversity is apparent in decisions concerning the terms 'family life', 'home' and 'correspondence' also found in Article 8 (see, eg, D. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (2nd edn, OUP, 2009), 371-381). This jurisprudence attests to the difficulty in ascribing a narrow or natural meaning to the term 'privacy' and, therefore, reveals the potential breadth of a tortious measure to protect against or otherwise cure invasions of privacy.
The IP43 refers to the possibility of modelling the statute upon the Campbell tort. This approach in the UK has certainly narrowed the scope of the tort to situations in which the problematic behaviour discloses sensitive information and this tort would seem to fit with the list of circumstances provided by the ALRC at  of IP43. However, there is a risk that this approach is underinclusive and may be insufficient to tackle the mischief that the statute hopes to deal with. In particular, it requires the claimant to demonstrate that the information disclosed is private (and, therefore, generates a reasonable expectation of privacy). Yet there are many situations in which a claimant may justly feel their privacy has been invaded and yet is not be able to satisfy the test. In other words, it may be that the information disclosed is not private but the attendant press or public scrutiny of the individual that follows raises genuine privacy interests.
Let me provide some examples.
Consider Lucy Meadows, a primary school teacher whose school had notified parents, with her blessing, that she would be the subject of a sex change and whilst currently a man would return as a woman after the school holidays. Lucy's sex change became the subject of fierce criticism by the Daily Mail in December 2012 and, following a period of sustained press scrutiny, Lucy committed suicide in early 2013. Alternatively, consider Mary Bale, who, in 2011, was the subject of sustained press attention following a bizarre incident in which she was captured on CCTV picking up a cat and dropping it into a dustbin. The Sun newspaper, in particular, launched a campaign of vilification in which Ms Bale was described as evil, vile, etc and in which various Facebook groups that had been established following initial publication were named, including one called 'Death to Mary Bale'. Ms Bale lost her job, required constant police protection and was unable to live in her home for a period of months after the reports stopped. Additionally, consider trainee accountant Emma Way who tweeted 'Definitely knocked a cyclist off his bike earlier – I have right of way he doesn’t even pay road tax! #bloodycyclists', which was reported by the Daily Mail and led to Ms Way's alleged suspension from work. Finally, in September 2013, the Independent reported that a trainee solicitor at leading UK law firm, Clifford Chance, faced dismissal following the posting of a video on YouTube in which the trainee, in a state of obvious inebriation, stated that he loved being 'a city lad' and 'fucking people over for money', a statement which the Independent suggested was a description of his job (although it is not clear from the video what he was describing).
In each scenario no sensitive -- or no objectively sensitive -- information is being disclosed and yet the individual still suffers the type of acute anxiety, guilt, embarrassment or shame that a privacy tort would be concerned to protect. For these reasons, it seems to me, the proposed statute should not include the list proposed at  but, instead, should refer to protection against unwanted and unwarranted attention following disclosure of information about the claimant. This attention may be in the form of press scrutiny but should also include situations in which it comes from public discussion on social media platforms. It could also apply to instances of online bullying or 'trolling', another contemporary social problem which has developed in the Twitter/Facebook age.
To my mind, a narrower exposition of the mischief that the statute is concerned with seems preferable since it avoids or else diminishes the possibility of ambiguity within the wording of the provision, which could otherwise lead to concerns about 'slippery slopes' or 'floodgates opening'. Moreover, it seems to me that the list at  whilst important is probably covered by other specific measures (which may be civil or criminal) or else could be catered for by the amendment of existing provisions relating to, say, trespass, the interception of communications, breach of confidence, harassment. A specific tortious measure dealing with unwanted and unwarranted attention following disclosure of information would provide better protection than breach of confidence (see, eg, Giller v Procopets  VSCA 236) since the information disclosed is not always confidential, or intentional infliction of harm (see, eg, Grosse v Purvis  QDC 151) since establishing intention may be problematic, or harassment since it may not be possible to show ongoing occurrences, etc (see Grosse).
In the free speech/privacy debate there is a legitimate concern that freedom of expression and press freedom (if we can treat these as different interests) are not unduly affected. Whilst these concerns should be acknowledged, they should not be overestimated as they sometimes are. There is no reason why greater protection for privacy, certainly not in the terms articulated above, should unduly concern the press or restrict its activities. Press freedom and freedom of expression, as understood in philosophical and political terms, is rarely defended as an absolute right. It is appropriate that seriously harmful expression should be interfered and, equally, it ought to be allowed where it amounts to persuasion rather than coercion or else where it can be shown that the claimant's behaviour is harmful to society and that harm is of a greater magnitude than the harm suffered by the claimant (I explain this in more detail below). Moreover, it ought not to be overlooked that there appears to be no shortage of individuals who are happy to forgo their privacy in pursuit of fame so it is not as if celebrity gossip would disappear overnight.
As set out above, I have suggested that the proposed statute should cover a narrow range of circumstances relating to unwanted and unwarranted attention following disclosure of information. I do not think a list of examples adds anything to this and, indeed, it may be harmful to the longevity of the act to be too specific on the scope of its ambit since it may be read narrowly in order to prevent application to novel and unexpected technological developments as they arise. For example, the introduction of 'Google glasses' or some other such device might also lead to the type of privacy invasion discussed above but not fit with the list of examples.
For the reasons set out above, I think the misuse of private information tort, as understood in the UK, may prove to be too narrow to deal effectively with the mischief envisaged by the ALRC. I have nothing to say about a cause of action for intrusion upon seclusion.
Expanding on the discussion above, I do not think there should be a threshold test of 'reasonable expectation of privacy'. To my mind, the seriousness of the intrusion should be determined by the effect of disclosure and not by any attendant qualities within the information itself. I say this for a number of reasons:
1. Although it would be overstating matters to say that the 'reasonable expectation of privacy' test is a redundancy in the UK, its value and effectiveness may be doubted. It is apparent in several decisions that even where the court has expressed doubt about the validity of the claim, they have nevertheless progressed to the second stage (the balancing exercise) in order to dispose of the claim that way. This approach can be seen, for example, in Author of A Blog v Times Newspapers Ltd  EWHC 1358 (QB). It is quite rare to find a case in which the court has dismissed the claim without conducting parallel analysis -- see, eg, John v Associated Newspapers  EMLR 27 or Driza v MGN Ltd  EWHC 2829 (QB).
2. Dispensing with the threshold test allows for greater expression of the equality of the two competing interests. Although understandable (to some extent), the present system scrutinises the privacy claim without comparable scutiny of the free speech claim. Whereas the privacy claim may be weak, the claim to free speech may be weaker still but there is no allowance for that in the system if the claimant cannot satisfy the threshold test. This disparity is even more pronounced in the context of injunctions (see below). By avoiding the threshold test and moving straight to the parallel analysis, the claimant might succeed in a claim where the free speech claim is minimal. Taking the example of Emma Way, the trainee accountant who was the subject of unwanted press and public attention following her tweet about cyclists (discussed above), it is unlikely she could establish that there was anything essentially private about the information disclosed about her (particularly since Twitter is a public forum). However, she may be able to demonstrate harm following the attention she received about this information. The court would then be able to determine whether this harmful effect was permissible by reference to the expression. Presently, we learn little about the value of the expression that is said to justify the privacy invasion and so the value of privacy-invading expression is beyond scrutiny.
3. Concerns about spurious claims of privacy invasion can be dealt with in other ways without recourse to the threshold test. For example, costs penalties may be applied where the court concludes that the intrusion is not sufficiently serious or summary judgment can be given at an early stage, in appropriate cases, as part of a system of active case management.
4. Moreover, there is a danger of exaggerating the risk of spurious claims. It should be recognised that there are several disincentives that a claimant must overcome to pursue a claim that, arguably, act as a sufficient safeguard: i) there is the not insubstantial matter of costs that many claimants may find prohibitively high (it should not be assumed that a tortious measure to protect against or otherwise cure privacy intrusion is only of interest to the rich and famous); ii) claimants may fear further reprisals will occur if they complain; iii) there is also the problem of tracing/identifying the appropriate defendant where the expression occurs online.
It seems to me that courts are not assisted by the establishment of a system that requires comparison of two competing schemes of public interest since the two are incommensurate. Judges are singularly ill-equipped to determine the public interest in privacy-invading expression in any meaningful sense and must, instead, rely upon ad hoc decision-making techniques in which personal moral judgements may have an unwanted and pervasive effect. Typically, although not exclusively, the Campbell tort is relied upon by adulterers who seek to conceal the fact of their adultery from public knowledge (see, eg., CC v AB  EWHC 3083; Hutcheson v News Group Newspapers Ltd  EWCA Civ 808; Terry v Persons Unknown (referred to above), etc). It is understandable in these circumstances that a judge may have little sympathy with the claimant's position and so be receptive to the defendant's claim that there is a public interest in ensuring that the public has an accurate impression of the claimant's true nature, particularly where the claimant is well known. This line of reasoning has found expression in the 'right not to be misled' found in Campbell v MGN Ltd and applied in Ferdinand and the notion of a 'freedom to criticise' found in Terry and applied in both Ferdinand and Hutcheson. As the UK jurisprudence shows, there is a risk that the concept of public interest is itself prone to an expansive meaning which may undermine the strength of the tort and its ability to guard against invasions of privacy.
Moreover, the UK jurisprudence also reveals a profound reluctance on the part of the judiciary to 'balance' public interest expression against competing privacy interests. Rather than quantify the respective claims so as to establish which holds the greater weight, the courts have instead tended to find in favour of the defendant where it is established that the expression is of public interest. This approach may be a result of the finding in the Supreme Court decision in In Re Guardian News and Media Ltd  2 WLR 325,  that Article 10(2) ‘scarcely leaves any room for restrictions on freedom of expression’ where the public interest is at stake and the observation by the Court of Appeal in ETK v News Group Newspapers Ltd  EWCA Civ 439,  that the public interest in the privacy-invading expression is the ‘determinative factor’ to the outcome of the claim. It is understandable that judges should feel wary of making judgments on the social value of expression: as Lord Hoffmann warned in Campbell, ‘judges are not newspaper editors…the practical exigencies of journalism demand that some latitude must be given’.
However, judges are singularly qualified to determine questions about harm and where the greater harm lies based on the facts presented to them. As noted above, in the answer to Q1, if we apply Millian thinking to this situation, we arrive at the solution that acts of individualism should not be subjected to coercion unless harm would otherwise follow. It was also suggested above that unwanted and unwarranted newspaper reports which disclose information about the claimant is usually of such a deleterious effect as to constitute coercion. Yet it may be that the claimant's behaviour warrants the intrusion because it can be said to be harmful itself. To take adultery as an example -- the social harm of adultery by a professional footballer appears tentative, at best, whereas the social harm caused by the adultery of a politician, given the importance of trustworthiness to their position, may appear more justifiable. However, the harm caused to the politician and his/her family, etc, may, in certain circumstances, be of a greater magnitude than this social harm such that although the newspaper was right to disclose the information, it was wrong to do so to the degree it did. This approach allows for recognition of, and protection against, the type of disproportionate public interest reporting that the examples referred to in the answer to Q2, above, involves. Moreover, this approach can be read consistently with the House of Lords interpretation of the second limb of the Campbell tort in Re S (a child)  UKHL 47,  in which the court articulated a four stage test: "(1) Neither article has as such precedence over the other; (2) Where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (3) The justifications for interfering with or restricting each right must be taken into account; (4) The proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
For the reasons set out by the Joint Committee on Privacy and Injunctions, as noted by the ALRC at  of IP43, I do not think there is any merit in embellishing upon the meaning of public interest in a statutory instrument. This is not to say that I do not think judges would benefit from clearer guidance on its meaning in a privacy context but rather that I do not think a statutory instrument is the place to do it since it defies simple definition. An appropriate press code of conduct might be more appropriate although this would not be problem-free since similar definitional difficulties may arise and this definition would not necessarily bind social media users.
In any event, as set out in my answer to Q7, I do not think 'public interest' determinations are the optimal method of resolving privacy disputes.
I think it should apply to negligent invasions of privacy but beyond that I have nothing meaningful to contribute to this question.
It seems to me it would be in keeping with the term 'serious' to insist that claimants are able to demonstrate harm however some care should be given to the level of proof required. For example, in the UK, it is clear that the courts are prepared to accept a prospective damaging effect upon an individual as proof of damage with the most obvious example being the fear that the children of the claimant will be emotionally damaged if they learn the 'truth' about their parent. See, eg, ETK v MGN Ltd (referred to above) and CDE v MGN  EWHC 3308 (QB).
To my mind, the provision relating to damage should be sufficiently broad to allow the claimant to establish emotional distress as evidence of damage. It may be that the court concludes that emotional distress caused is minimal and this is reflected in the level of the award. However, it is in the nature of the 'harm' of privacy-invading expression outlined in Q1 that the impact on the claimant's individual autonomy cannot be quantified according to the usual methods. It may be that the claimant is able to testify to detrimental changes in his or her relationships with other people. This may be due to difficulties in sustaining existing relationships or forming new ones. It will be hard to quantify this impact unless those relationships are in, say, an employment/business context. In certain cases, it may be that the damage caused is due to a reaction so eccentric as to be a novus actus (see discussion, below, at Q27).
It follows from the discussion above that I think that the conduct should be proportionate, particularly since it is my view that the phenomena of disproportionate public interest reporting is a particular problem that the Campbell tort does not sufficiently provide protection against in the UK jurisprudence. However, I think this outcome should be achieved through the means discussed above, of considering the harm of the expression and determining where the greater harm lies. To require proportionate interferences with privacy in all cases may fetter freedom of expression/press freedom too much. Similarly, any requirement that the conduct was necessary and reasonable would be an unreasonable restraint upon freedom of expression/press freedom.
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I do not think any activities should be exempt.
I have nothing to contribute to this question other than to say that the option of exemplary damages in appropriate cases may be the best means (it may be the only means) of achieving meaningful results in respect of the kind of cultural disregard for privacy by the press that Leveson observed during his inquiry. Otherwise, there is a risk that where damages awards are low (or relatively low), a profitable newspaper may trample upon privacy rights following a cost/benefit analysis that suggests there is more money in breaching the law than complying with it. In this sense, an account of profits also seems an attractive option.
Although s 12 HRA 1998 is a valuable provision that might be replicated, s 12(4), which provides that particular regard should be given to freedom of expression, has not proven to be particularly significant. It was read down in Douglas v Hello in a manner that left no doubt that the right to freedom of expression under Article 10 holds no presumptive priority over the right to respect to privacy under Article 8 and that, instead, the two must be regarded as equal. It would be detrimental to the success of the proposed tort if it contained some statement suggesting priority for freedom of expression and/or press freedom.
It is at least arguable that the test applied in interim injunction proceedings, or rather the test under s 12(3) as interpreted by the court in Cream Holdings v Banerjee is too restrictive. The test is, essentially, that the claimant must show that it is more likely than not that their claim would succeed at full trial. Often, however, an interim (and permanent) injunction is the only remedy that the claimant is interested in. Courts often defend the strictness of s 12(3) by noting the perishable nature of press speech. However, I am not sure why courts conclude that respect for this perishability could not be accommodated within a more lenient test. For example, the proposed statute might set a low threshold for obtaining an injunction -- say, that the claimant need do no more than demonstrate an arguable case, ie, that the claimant may succeed at trial -- which is subject to the proviso that this threshold may be dispensed where the defendant can adduce argument that the information to be disclosed is in the public interest (or, in the sense I use above, that the expression reveals that the claimant is involved in socially harmful activity) and time-critical. In those circumstances, the court could then apply the higher threshold of whether it is more likely than not that the claim will succeed at full trial.
As the ALRC will be aware, the Leveson report recommended the creation of a regulator with, amongst other things, powers to require a publisher to print an apology and/or corrections. The ALRC may have something similar in mind. Whilst such remedies are attractive in principle, it is difficult to imagine how they could be enforced by a court in a satisfactory manner. It seems more likely that the most that could be done to tackle determined and principled objection by a publisher to such orders would be to fine the publisher, which the publisher may prefer to do but which would not, of course, achieve the desired result. A more satisfactory remedy for claimants -- alongside meaningful damages -- would be to give the courts the power to insist upon retraction or deletion of the offending expression from the publisher's website. Whilst this might not remove the offending expression altogether (it may well be impossible to remove all of the offending expression from the internet in its entirety) it may go some way to rectifying the damage done.
I do not see any reason why not, in principle, if the estate can demonstrate harm. It is more likely (though not inevitable) that individual family members will have a stronger claim.
I think this is an attractive idea, particularly since it accommodates the victim, noted above, who does not complain for fear of reprisals. It requires further thought, though, as to whether the Privacy Commissioner should defer to a victim whose concerns run so deep that they fear reprisals will occur even though they have not initiated the complaint and will play little or no role in the complaint. Arguably the PC should not pursue a complaint in those circumstances even though the interference with privacy may be great and the PC may wish to make an example of it. Presumably any damages obtained through this process would be given to the victim rather than kept by the PC?
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I only have a small point to make here but some consideration might be given to the extent to which existing employment laws also provide protection to claimants who are the subject of eccentric employer reactions to privacy-invading expression. A common factor of the examples discussed in the answer to Q2, above, is, bar the Lucy Meadows story, the presence of some eccentric reaction by the employer to the press story in which an employee is either dismissed, disciplined or otherwise suspended as a result. In such circumstances it may be that the loss suffered by the claimant cannot be recovered from the defendant because the employer’s reactions constitute a novus actus. Some consideration should be given, therefore, to the question of whether a claimant can or might recover that loss from their employer instead.