Case Law: Robinson v Sunday World – private hearings and social media

The issue as to whether and to what hearings in in privacy cases should be held in private has been the subject of considerable discussion in the English Courts. The point was considered by the Court of Appeal in Northern Ireland in the recent case of Robinson v Sunday Newspapers [2011] NICA 13. The Court took into account concerns about publications on social networking sites when decided to overturn the first instance judge and to order that the hearing take place in private.

Background

The claim was brought by Iris Robinson, the wife of the Northern Ireland first minister, and was for breach of confidence/misuse of private information, harassment and breach of her rights under Articles 2 and 8 of the Convention. She had suffered an episode of severe mental ill health in the form of depression following revelations about her private life in January 2010. The defendant newspaper had published photographs of her when she was out for a walk as part of her ongoing rehabilitation and treatment. On 16 April 2010 the Judge, Treacy J, had granted an interim injunction, returnable on 21 April 2010. On the return date he rejected an application by the plaintiff for the hearing to be in private. He held that

“there was no evidence that the hearing of the case in public, if accompanied by restrictions on publication, would increase the risk of suicide. The risk to her was caused by intrusive media surveillance and reporting. This risk could be mitigated or removed by a reporting restriction. A secret hearing would not address the mischief” [10].

The plaintiff appealed and relied on fresh evidence including medical evidence to the effect that media attention would damage the plaintiff’s mental health and increase the risk of self-harm.

Judgment

The Court of Appeal noted that there was a significant degree of agreement between the parties about the principles of open justice which applied. It noted that

“that the principle of open justice is an important safeguard against judicial arbitrariness or idiosyncrasy and maintains public confidence in the administration of justice” [19]

However, there were cases in which the principle “may have to give way to the need to protect convention rights” [20]. The respondent had accepted that the case was one “where some restriction on the information which should be made available to the public may be necessary” but argued that this“can be achieved by reporting restrictions which will prevent public reporting of the hearing” [21] The Court of Appeal drew attention to the high threshold to be met and to the medical evidence. It said that there was “no reason to doubt that if there was a reporting restriction that it would be meticulously honoured by the respondent and any other reputable publisher” [23]. However, the Court then went on to consider the effect of publication otherwise than in the press:

“We are satisfied that we should take judicial notice of the fact that social networking sites, Twitter and the internet generally now provides an alternative means of publication to traditional daily or Sunday newspapers. Although the numbers of persons to whom the publication is made may be considerably less than the circulation of a popular Sunday newspaper publication on the internet is difficult to control and in particular the source of the publication may be outside the jurisdiction of the court. Publication can also occur on a more limited basis by word of mouth. The hearing of the application will inevitably involve the discussion of aspects of the appellant’s treatment and condition. In view of the interest to which we have referred in the appellant’s medical treatment … we consider that there is a real danger that if these proceedings were open to the public the information disclosed in the hearing would be disseminated on the internet even if a reporting restriction was imposed.” [24]

The Court decided that, in all the circumstances, and in the light of the positive obligation under Articles 2 and 3 of the Convention, it was required “to direct a private hearing of the application for the continuation of the injunction” [27] It did not consider the issues raised under Article 8.

Discussion

The question as to whether a first instance court should hear a privacy case in public – subject to reporting restrictions – has been considered by the English courts on a number of occasions. The Court of Appeal have repeatedly emphasised the importance of holding such hearings in public whenever possible. This year privacy injunction appeals such as JIH v News Group ([2011] EWCA Civ 42) and Ambrosiadou v Coward ([2011] EWCA Civ 409) have been held entirely in public. It has been argued by the press on a number of occasions that first instance hearings should take place in public as well – subject to appropriate reporting restrictions. In MNB v News Group ([2011] EWHC 528 (QB)) Sharp J considered an application by the defendant to make such an order. She said that the defendant had not addressed the consequences for the privacy interests of a claimant which may result from the inadvertent revelation to third parties of information during the course of a hearing. She noted that there were considerable practical difficulties which would arise in preventing the dissemination of the information in the event of inadvertent disclosure. She noted that

“A hearing at first instance usually ranges widely over the facts and matters in issue; and this is what occurred in this case. It would have been impossible in my view for the issues which arose to be properly explored without referring in some detail to the information concerned; and without revealing the identity of the Claimant, or matters which would be likely to lead to his identification” [12].

Nevertheless, in some privacy subsequent cases such as MJN v News Group ([2011] EWHC 1192 (QB)) and Goodwin v News Group (No.3) ([2011] EWHC 1437 (QB)) first instance hearings relating to privacy injunctions have been held in public. But the wider issues relating to publicity in social media have not been addressed. The comments of the Northern Ireland Court of Appeal are of particular interest in the light of the recent controversy about breaches of injunctions on Twitter. The fact that the Court was prepared to take into account the risk of the spread of information on social networking sites is an interesting indicator of the possible future approach of the English courts to reporting restrictions. If injunctions are breached on Twitter then the courts are likely to find it necessary to impose further restrictions on open justice.