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17 March 2011
The Court of Appeal has handed down a decision protecting the identity of a man who had obtained an injunction to prevent details of his private life from being published. The decision is likely to mean that more claimants will be able to conceal the fact that they have applied for injunctions to protect information about their private lives, as the court favours giving some details of the subject matter of an injunction over naming the person who obtained it.
The man, known as JIH, was granted the injunction and anonymity before Justice Nicol. Following the hearing, the claimant made an application for the order to be continued. The defendant agreed to the application and the judge made an order that continued his injunction pending a further hearing. In the meantime, the claimant served the order on seven media organisations, none of which applied to vary or discharge the order.
Before the return date, the parties settled their dispute and asked the court to approve a consent order continuing the injunction (including the provision for anonymity). Justice Tugendhat was not prepared to approve the order since, being a derogation from open justice, it affected the rights of the public - it not only provided the claimant with anonymity, but also prevented reporting of the subject matter of the proceedings.
The judge ordered the parties to return for a hearing, at which he determined that there was no good reason not to release JIH's name. He held that anonymisation and the withholding of information about the subject matter of proceedings are alternative, not complementary, forms of protection against the disclosure of private information. The judge felt that the court's only option was to release the claimant's name. Having considered the likely effect of disclosing the claimant's identity, and noting the absence of evidence from the claimant that he would not have commenced the proceedings had he thought that his name might become public, the judge decided that interference with the claimant's rights arising from his identification would be limited, provided that the subject matter of the case was not published.
The claimant appealed and anonymity remained in place pending appeal.
While awaiting appeal, the case went back before the judge on the claimant's application that publications in the media since the order, which contravened that order, meant that if the claimant's identity were to be published in future, the private information sought for disclosure would become public. The judge refused to overturn his earlier judgment.
The media industry had hoped that the decision would stand and that the increasingly common use of anonymisation for claimants would end. The judge's reasoning was sound: the principle of open justice demands that justice not only be done but be seen to be done, and any derogation from the principle - through anonymity, hearings in private or confidentiality - must be justified. The default position is that parties and issues must be public. At the interim stage of privacy cases, it is sensible that the details (ie, the very information that the claimant is seeking to protect) remain confidential, but that is no reason not to identify the claimant.
The claimant perhaps objected particularly strongly because allegations had previously appeared in the press that he had had sexual relations outside his relationship. As such, were he to be identified as having sought an injunction to protect private information, the assumption might be made that the subject of the injunction was similar in nature to the previous allegations.
Court of Appeal hearing
The case was heard by the Court of Appeal. The claimant's counsel argued that JIH should have been accorded anonymity, either on the basis of the position at the second hearing or in view of the publicity which occurred thereafter. Having accepted that the publication of private information should be restrained, the court could proceed in one of two ways. If its public judgment or order directly or indirectly disclosed the nature of the information in question, it should be anonymised; alternatively, if the claimant was named in the public judgment or order, the information should not be directly or indirectly identified.
In a situation where previously published information about the claimant would lead to an inference as to the subject of the injunction, the first option was the better path. The court conceded in its judgment that the public interest would generally be better served if judgments described the nature of the information which was private, rather than merely identifying the claimant.
The position of the defendant's counsel was unusual, as his client had agreed to a consent order protecting the identity of the claimant. He noted that if a story is of less interest to the media and the public because the name of the claimant has not been released, it is less likely to be reported or read. However, the court decided that the claimant's name should not be released, summing up the issue as follows:
"When the balance [of rights] comes down in favour of preventing publication, a further problem sometimes arises, namely the extent to which, and the way in which, the parties' evidence and arguments, and the court's reasoning and order, in the particular case can be reported. It would be wrong to permit unrestrained reporting in the normal way, as that would involve publishing the name of the claimant and the details of the information whose publication he seeks to prevent, thereby rendering the court's order pointless. On the other hand, public coverage of court proceedings is a fundamental aspect of freedom of expression, with particular importance: the ability of the press freely to observe and report on proceedings in the courts is an essential ingredient of the rule of law."
The public judgment therefore gave details of the subject matter of the injunction in the following terms. The claimant had been in an apparently long-term and conventional relationship with a person referred to as XX. Since his relationship with XX had started, but before August 2010, a story had been published - without JIH having received prior notice - suggesting that he had had a sexual liaison with another person, referred to as YY. The story whose publication JIH was seeking to prevent concerned an alleged sexual encounter that he had had with a different person, referred to as ZZ, in 2010. The injunction therefore prevented publication of "[i]nformation concerning a sexual relationship or alleged sexual relationship between [JIH] and [ZZ] during the period of his relationship with [XX],... including the fact or any details of such relationship".
The court acknowledged that an anonymity order runs the risk of unintentionally encouraging suspicion and gossip in relation to innocent third parties. However, publishing the name of the claimant was likely to lead to speculation about the nature of the information. In this case the court found that it was a "crucial factor" that similar allegations had previously been published concerning a sexual relationship between the claimant and YY. As such, naming the claimant would make it likely that the media and members of the public would deduce the nature of the information protected by the injunction. The court noted that it would be "a classic, if not very difficult, jigsaw exercise."
It is a clear principle that parties may sometimes be anonymised in public court documents and judgments where their rights under Article 8 of the European Convention on Human Rights would otherwise be unjustifiably infringed. The question is how the principles of open justice and the Article 10 rights of the press and public should be balanced with the Article 8 rights of a claimant. Not all threatened interferences with a person's Article 8 rights will be serious enough to justify anonymity; in this case, it was initially decided that the principle of open justice trumped the claimant's Article 8 rights. However, the Court of Appeal disagreed, finding that the claimant's Article 8 rights would not be properly protected if his name were revealed. Given what had been previously published about him, people would guess or assume knowledge of the subject matter of this injunction.
The question is whether a general principle has been created or whether these matters remain entirely fact-dependent. All privacy cases must, to some extent, be examined in isolation, with measures put in place in a way that best protects the various human rights in issue. General principles are difficult to enunciate. However, in reaching this decision, the Court of Appeal has provided some instruction on the weight to be given to the principle of open justice and the manner in which this will be best served. Full adherence to the principle of open justice is clearly the preferable position, with all elements of a matter being open and in the public domain. However, at an interim stage of privacy matters where an injunction is sought, it is unlikely that all the information can be released in a public judgment, as such publication is likely to defeat the purpose of the injunction. The court's view appears to be that it is better for the public to know why an injunction has been granted and the nature of the information which is being protected, rather than the identity of the person seeking it.
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