News: JIH application for permission to appeal “de-anonymisation” – Mark Thomson

25 11 2010

I have already posted about the decision of Mr Justice Tugendhat in JIH v News Group Newspapers.  This was a judgment handed down on 5 November  in respect of an application for a consent order in a privacy action. Although the parties agreed, as part of the terms of settlement, a continuation of the anonymity provisions already granted, the judge declined to continue the anonymity order. The court nevertheless imposed a “DFT” order preventing publication of material other than that contained in the Judgment itself. The anonymity order was continued pending an application for permission to appeal.

The next day, two newspapers reported on the decision but included material which it was alleged to breach the terms of the order granted the previous day.  JIH then applied back to court to seek to reanonymise on the basis that the subsequent publications breach the terms of the order and therefore the deanonymisation would effectively cause the release of the information which the injunction sought to prevent.

In his Judgment handed down on 18 November 2010 in  JIH v News Group Newspapers (No 2) Mr Justice Tugendhat  declined to reanonymise the proceedings. He said:

“While I assume that what has been disclosed by the two publications complained of before me would in each case amount to an interference with the private life of the Claimant and others, on the scale of possible interferences, the disclosure does not rank high. What was published was at a high level of generality, lacking all detail.

He nevertheless warned:

“What has occurred is a matter for great concern. Editors and others will take note of the submission of Mr Spearman set out in para 23 above. If the court is to give effect to Art 10 to the fullest extent, it is essential that editors and publishers have regard to the “duties and responsibilities” referred to in Art 10(2) itself. These duties and responsibilities include a requirement that they comply with orders of the court, and that they take all necessary steps to ensure that journalists understand this necessity.”

The anonymity order was due to expire yesterday and there was substantial media speculation that JIH was about to be unmasked.  The “Daily Mail” ran an article under the headline “Identity of ANOTHER sportsman who won media gagging order may be revealed today” drawing attention to the expiry of the deadline.  The press interest was such that it was reported that the Judicial Communications Office felt it necessary to issue the following statement to the media yesterday afternoon:

“We can confirm that an application by JIH for leave to appeal Mr Justice Tugendhat’s judgments of 5 and18 November 2010 has been received by the Court of Appeal.  As a result JIH’s identity cannot be reported until the Court of Appeal has considered this application.”

The media interest could, I suppose, arise out of an interest in open justice and a concern to have a full understanding of the judicial process.   But, on balance, it seems a bit more likely that they just wanted to “unmask” JIH.   It is difficult to see how any of this serves the proper interests of the public.

At approximately the same time yesterday judgment was handed down by Mrs Justice  Sharp  in a blackmail privacy action which  was anonymised; KJH v HGF [2010] EWHC 3064 (QB.) As can be seen at the very top of the judgment is a warning in red in the following terms:

It is ordered that publication of any information as to the subject matter of these proceedings or the identity of the parties to these proceedings, is limited to that contained in this judgment.

The judge has carefully avoided any information identifying either the claimant or the defendant.  The public interest in the “openness of justice” has been served by the public judgment but the Article 8 rights of the blackmail victim have been protected. It seems to me that this is the right way of going about it – rather than the ritual “unmasking” by the press mob which will be the outcome of JIH unless the Court of Appeal intervene.

It is obviously a serious concern whether the media heed the warnings  given by Judges in the last few days. Given the nature of current 24 hour news media and the internet, and also the points raised in yesterday’s post about the Howard Donald decision, there is a serious concern as to whether the Court process is  now providing real effective interim remedies for threatened invasions of privacy and at the same time protecting the Convention rights of both the claimant and the defendant.


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