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Case Law: CDE v MGN plc, – privacy and anonymity (again) – Edward Craven

What’s in a name? ‘A lot’, the press would answer” – these were the memorable words of Lord Rodger in the Supreme Court in In re Guardian News and Media Ltd [2010] UKSC 1 [63]. Regular readers of the Inforrm Blog will be well aware of the continuing debate about the circumstances in which a court should supplement an injunction preventing publication of private information with an order anonymising the names of the litigants as well. Unsurprisingly, such anonymity orders tend to be very popular with claimants (who want to avoid alerting the public to the existence of information “out there” that the claimant wishes to keep secret) and equally unpopular with the press (who recognise that naming names tends to sell more papers).

In the Guardian News and Media Ltd case Lord Rodger referred to the “recent efflorescence of anonymity orders” whilst counsel for the media lampooned the “alphabet soup” of anonymised judgments. The issue is currently before the Court of Appeal in the case of JIH v News Group Newspapers. However in the recent decision of CDE  v MGN Ltd [2010] EWHC 3308 (QB) Eady J has introduced an interesting new ingredient to the legal potage.  In CDE the court took the unusual course of extending an anonymity order to cover several individuals who were not actually parties to the case.  And, in an ironic twist, one of the anonymised individuals was a journalist employed by the defendant newspaper.

Factual Background

The claimants were a married couple who wished to prevent the defendants from publishing certain information relating to their private lives. Eady J described the first claimant (“C1”) as being someone who “often appears on television”; however no other substantial details were provided about his job or background. No information was provided as to the identity of the second claimant, save that she was married to C1. According to the judgment the claimants had several teenage children, “have always guarded their private lives closely” and “have never sought publicity”.

The first defendant (“D1”) was MGN Ltd, publisher of the Sunday Mirror. The second defendant (“D2”) was a single mother who had apparently suffered from mental health problems at various points throughout her life. Between March 2009 and February 2010 D2 had conducted what the judge described as “a kind of quasi-relationship” with C1. There had been no physical aspect to their relationship, which had taken place almost entirely by telephone, text and email. However “intimate and personal thoughts were exchanged” between the pair and there was also “a good deal of flirtation and sexual innuendo” in their communications.

D2 now wished to sell her story to the Sunday Mirror and had entered into a confidential agreement with the newspaper to do exactly that. However, unlike many tabloid kiss-and-tell accounts this was not a case where D2 had approached the newspapers with a view to selling her story. On the contrary, she had been approached by journalists who had been tipped-off that she had been involved with C1. D2 was initially adamant that she did not want any details about the relationship to become public, saying: “I just want to be left alone as much as he [C1] does”. However following sustained pressure she later changed her position and decided that the best course would be to allow D1 to publish her story.

At the outset (and in an effort to prevent the story from coming out) D2 had decided to engage the services of a public relations adviser. He was referred to in the judgment simply as “Mr X”. Whilst initially supportive of D2’s approach, Mr X subsequently persuaded D2 to meet with a journalist from the Sunday Mirror (referred to simply as “Ms K” in the judgment). Following that meeting, Ms K employed a range of dubious techniques that were designed to put pressure on D2 to sell her story to the paper. For example, Ms K incorrectly suggested that C1’s lawyer would be circulating D2’s name around the media. The judge could think of “no good reason” why Ms K had made this suggestion, which was “plainly calculated to alarm” D2. In addition, Ms K later made what the judge described as “a disparaging and unfounded allegation” against C1’s lawyer. According to the judge, the allegation was intended to convey the clear message that the lawyer was not to be trusted and that D2 was better off confiding in Mr X and the Sunday Mirror. Ms K also repeatedly suggested that the story would inevitably emerge in the media and that it was therefore far better to for D2 to control the story herself by selling it to the Sunday Mirror immediately.

The upshot of all this, according to Eady J, was that D2’s attitude about selling her story changed significantly over a short period of time. Despite initially expressing a strong desire to keep the story out of the papers if at all possible, D2 was now of the view that it was in her best interests for the story to be published by the Sunday Mirror.

Decision to grant an interim injunction

The claimants sought an injunction to prevent the defendants from publishing the private information in question. They argued that publication would prove very distressing to them, their children and also to D2’s family. The judge agreed that the threatened publication would certainly engage the Article 8 rights of all those individuals. Applying the test contained in s. 12(3) of the Human Rights Act 1998, Eady J was required to decide whether it was “likely” to be granted at trial. Answering this meant balancing D2’s Article 10 right to tell her story and D1’s Article 10 right to publish the story against all of the Article 8 rights that were engaged. On this point, Eady J said that it was clear that the publication would not contribute to a “debate of general interest to society” [73]. He therefore decided to grant the injunction since in his view the claimants were likely to succeed in obtaining a permanent injunction at trial.

Anonymisation of the parties

Eady J then turned to the question of whether the parties’ names should be anonmyised pending trial. He concluded that they should. In his words, it was “self evident that to identify either of them would entirely defeat the court’s purpose in granting the injunction. That which it is intended should be kept private, until the trial, would to all intents and purposes become public: there would be no point in having a trial” [76].

He explained that Article 6 is engaged if those whose rights are threatened are “reasonably deterred from seeking [justice] at the hands of the court” [82]. He then continued:

“… Usually, there will be competing rights under Article 8, Article 6 and Article 10 that have to be reconciled. In some well known cases, Article 2 has also been engaged, but that is of no relevance here. In this case, it is a question of balancing the rights of the Claimants (and/or their family) under Article 8 and Article 6, on the one side, with those of the Defendants under Article 10. Additionally, however, there is the interest of the general public in open justice (another aspect of Article 6).” [83]

Eady J then discussed the importance of open justice:

“The most important element of open justice in this case, as with many other privacy and confidence cases, is that interested observers and legal practitioners should be able to monitor the court’s processes and form a view as to whether judges are applying a consistent, fair and balanced approach in the application of this recently developed jurisdiction to the facts of individual cases.” [84]

He then concluded as follows:

“The central public consideration is that the reasoning of the court should be transparent. Compared to that, the social utility or value to be attached to identification, as such, is relatively low: cf. XJA v News Group Newspapers Ltd [2010] EWHC 3174 (QB) at [15]. There may be cases in which it is possible to reveal the identity of one or more of the litigants involved and yet not defeat the purpose of the court’s protection. If so, well and good. It is plainly desirable that everything should be made public unless there is a sound reason to withhold any information – including the parties’ identities. But I am satisfied that this is not such a case. It is necessary and proportionate to withhold their identities to ensure, so far as possible, that the information to which rights of privacy are said to attach should not be revealed pending trial. Otherwise, a trial would serve no purpose.” [86]

Anonymisation of the names of certain non-parties

In light of the observations made by the judge in his draft judgment, an application was made to extend the anonymity order to cover the Sunday Mirror journalist, D2’s solicitor and the public relations adviser (and his assistant). The reason for this request was that, as Eady J himself noted, “it might be thought that my conclusions do not reflect very well on those people”. In response Eady J emphasised that his conclusions were not judicial findings. All that he had done was to decide on incomplete and untested evidence what the “likely” outcome of any trial would be. However despite the fact that there were no judicial findings in his judgment, he nevertheless decided to grant the extension:

“Meanwhile, says [counsel], it might give rise to unfairness if casual observers interpret my observations as though they were the ultimate findings. It is true that much of what I have said is based on recordings and facts which are incontrovertible but, even so, upon closer examination facts sometimes emerge in a different light” [89].

Discussion

Several aspects of the case call for comment. A first point concerns the judge’s reference to “the interest of the general public in open justice (another aspect of Article 6)” [83]. Whilst there can be no doubt that the general public has a significant interest in open justice, the relevance of Article 6 in this connexion is questionable. The European Court of Human Rights’ case law on the meaning of “civil rights and obligations” is notoriously confused. In an administrative law context the English courts have recently applied a test of whether there is a determination of “an individual right of which the applicant can consider himself the holder” or “an individual economic right in the applicant” (Ali v Birmingham City Council [2010] UKSC 8). It is difficult to reconcile the diffuse and nebulous “interest of the general public in open justice” with the narrower conception of the phrase “civil rights and obligations” that is found in the Strasbourg and domestic jurisprudence.

A second and important feature of the CDE decision is the court’s analysis of the reasons why open justice is important. According to Eady J, the principal value of open justice (at least in the present case) is that it enables interested observers and legal practitioners to monitor the way that the courts conduct their proceedings and helps them to evaluate whether the judges have followed a consistent, fair and balanced approach in their decisions. This appears to place the focus of open justice upon the processes and decision-making of the courts themselves, as opposed to the actions and conduct of the parties appearing before them. This arguably sits uncomfortably with Lord Rodger’s statement in In re Guardian News and Media Ltd that “the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers” [68]. The suggestion that open justice is mainly concerned with simply ensuring that the courts are working properly is likely to attract strong disagreement from the media.

A third notable aspect of the judgment is the contrast between Eady J’s rationale for granting anonymity to the non-parties and his rationale for granting anonymity to the parties themselves. In relation to the non-parties, Eady J’s driving concern is the possibility that “casual observers” may inappropriately conclude that the court’s provisional views represent concrete factual findings. However this invites a number of possible responses. Most importantly, it raises the question whether the courts should alter their practices in response to a perceived danger that individuals who have not taken the effort to fully engage with the court’s reasoning may misunderstand some of the comments contained in the judgment.  It is noteworthy that in In re Guardian News and Media Ltd the Supreme Court rejected an argument to the effect that “the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately.” This was so even though the Supreme Court acknowledged that “Doubtless, some may well indeed draw the unjustified inference that [the respondent] fears.” [60].  It might be argued that this dicta suggest that Eady J did not strike the correct balance between the protection of the reputations of the non-parties and the general interest in open justice.  However, it should be borne in mind that his determinations were not final and had been made without the benefit of cross-examination of the relevant witnesses.  There is a strong argument that, in such circumstances, serious adverse public criticism of a journalist or lawyer would be unfair and that, as a result, Eady J was right to anonymise these individuals.

Conclusion

The appropriate role of anonymity in privacy cases will continue to be a hot legal topic over the coming months. The battle between the proponents of open justice and the advocates of anonymity shows no sign of abating anytime soon. However it is interesting to see a newspaper requesting and obtaining anonymity for one of its own journalists. Eady J’s judgment in CDE therefore offers food for thought to everyone involved in the debate.

Edward Craven is trainee barrister at Matrix Chambers.

1 Comment

  1. Law Think

    A very interesting article

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