This case arose out of application for an interim non-disclosure order granted by Lindblom J at an out of hours hearing on Saturday 11 February 2012, after the Claimant – Jonathan Spelman, a talented rugby player and the 17 year old son of the Environment Secretary, Caroline Spelman MP – learned that the Daily Star Sunday had allegedly private information about him that it was intending to publish on 12 February 2012. We had a post about the decision here.

The return date was set for 16 February 2012 and, in a reserved judgment handed down by Tugendhat J on 24 February 2012 ([2012] EWHC 355 (QB)), the Claimant’s application for the continuation of the non-disclosure order pending trial was refused. A stay of execution was granted until 4pm on Friday 2 March pending any application for permission to appeal. No application was made and, as a consequence, the information upon which proceedings were based has now been put into the public domain, first by the Claimant’s parents in a joint statement on Friday 2 March and subsequently by the Daily Star on Sunday.

The information concerns the Claimant taking substances banned under “anti-doping rules” (although not illegal) in order to aid his recovery from a rugby injury he sustained in September 2011 and which had stopped him from playing. In their joint statement, the Claimant’s parents admitted that the former under-16 England rugby player had taken the drugs, now believed to be steroids, that he had made a voluntary statement to the RFU, and that he was now subject to its disciplinary procedure.

The Judgment

Granting the initial application, Lindblom J nevertheless refused the Claimant’s application for anonymity on the basis applying the principles set out by the Court of Appeal in JIH v News Group Newspapers [2011] EWCA Civ 42 at [19 to [21] and summarised at [9] to [15] of the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders.

Lindblom J considered it likely that the Claimant had a “reasonable expectation of privacy” in respect of the information and that its publication would not advance the public interest sufficiently to outweigh this. The non-disclosure order was wide-ranging, covering any information or purported information concerning two matters which were redacted from the public version of the judgment (although which may be assumed to relate at least in part to the claimant’s drug use).

At the return date hearing, Tugendhat J held at [119] that it was not necessary or proportionate to make an order restraining the Defendant from disclosing the information. The fact that the Claimant was still a child was considered when weighing up the balance of competing Article 8 and Article 10 rights and in particular whether the Claimant had a reasonable expectation of privacy. However, Tugendhat J considered that this was substantially diminished by reason of the fact that he was almost 18 and, more importantly, that he enjoyed status as an international sportsman. This moreover went to the question of public interest as

“discussion of his sporting life, and the effect that it may have upon him, is discussion that contributes to a debate of general interest about a person who is to be regarded as exercising a public function”. [72]

Tugendhat J went on to consider the nature of the information in question. This was not disclosed in the public version of the judgment for the reasons summarised by the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 at [26], namely so as not to pre-empt publication and because doing so would mean that the Claimant

“[…] could not bring an action at all without disclosing his private or confidential information, and so defeating the purpose of the proceedings. The effect would be that private or confidential information would have no legal protection at all”. [97]

Having considered the underlying information, Tugendhat J concluded that “whether the Claimant has a reasonable expectation of privacy is an issue on which each side has a real prospect of success”. [100]

As to public interest, both sides had a good prospect of succeeding on this point.  Although the information upon which this conclusion was based is only set out in the Closed Judgment, at [103] Tugendhat J elaborated on the types of area which may attract a public interest argument. [ In particular, he was of the view that the fact that the Claimant is a child may lend support to rather than detract from the public interest in publishing the information. In this regard he noted the “vulnerability” of institutions with responsibility for children, including those involved in sports at a high level, to preserving their own reputations over the interests and welfare of those in their care. [104, 107] These factors were not in issue here but, nevertheless “what is appropriate priority and what is for the welfare of children and young people, is itself a matter fit for public discussion”. [107]

Finally concluding that continuation of the injunction would be neither necessary nor proportionate, Tugendhat J emphasised that this was not an open invitation for the press to publish whatever they like. In addition, any disclosure of private information about the Claimant “may be the subject of a claim for damages, which may, in an appropriate case, include aggravated damages”. [120]

Comment

The refusal of the application for anonymity in this case had a direct impact on the Court’s ability to refer to the underlying facts in its judgment for the reasons referred to above. As such, it is illustrative of a tension between two competing public interests central to the principle of open justice. On the one hand lie precedent and legal certainty. And on the other, the public’s right to know.

The importance of the role of the media to the principle of open justice is nothing new: see, eg Scott v Scott [1913] AC 417. A more recent phenomenon, however, is the recognition of the practical realities, namely that order to carry out its role in this regard, the media should be permitted to do so in a manner which is of interest to its audience. If it is not so permitted, the long-term reality is that large sections of the printed press will cease to perform the role altogether, and broadcasters will do so only to the extent necessary to satisfy the regulator.

In Re S (a child) (Identification: Restrictions on Publication) [2005] 1 AC 593; [2004] UKHL 47 the House of Lords considered the justification for an injunction preventing any publication in media reports of a criminal trial of the name or any photograph of the mother or deceased brother of the child, S. Refusing such an Injunction the House of Lords recognised that newspaper articles about criminal trials inevitably relate to a matter of public interest. At, at [34] Lord Steyn stated:

 “[I]t is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the Defendant would be a very much disembodied trial. If the newspaper chose not to contest such an Injunction, they are less likely to give prominence to reports of the trial. Certainly readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

More recently, in Re British Broadcasting Corporation [2010] 1 AC 145; [2009] UKHL 34 (concerning the proposed identification of an acquitted rapist subject to an anonymity ruling in a television programme about the abolition of the rule against double jeopardy) Lord Brown, with whom Lords Phillips, Hope, Walker and Neuberger all agreed, addressed, at [65]-[66], the same point as follows:

 “Why [D] asks rhetorically, cannot the BBC broadcast their programme simply referring to D as D without actually identifying him? The answer to that submission is in my opinion to be found in para. 34 of Lord Steyn’s speech in In Re S (a child) [2005] 1 AC 593: such a programme will indeed be ‘very much disembodied’ and have a substantially lesser impact upon its audience.”

And in Re Guardian News and Media Limited [2010] 2 AC 697; [2010] UKSC 1 a seven-Judge Supreme Court considered a similar issue in relation to anonymity orders made in proceedings brought to challenge certain directions and designations under the terrorism legislation. At [63]-[64] Lord Rodger stated:

 “What’s in a name?  “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed… This is not just a matter of deference to editorial independence. The Judges are recognising editors know best about how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive”.

In none of these cases, however, did the refusal of anonymity materially impact upon the extent to which the underlying facts of the case could be made known. In Spelman, however, because the Claimant was identified, the facts at the core of the case were not disclosed with the result that the basis of the decision inevitably suffered some ambiguity. Yet the outcome of an application for an interim non-disclosure order in a privacy case is dependant upon its unique factual matrix. Whilst it is possible, in the abstract, to identify certain parts of a private life as inherently more private than others, and certain public interest consideration as inherently more weighty than others, it is the interplay and interconnection of each of the factors with one another that will determine the outcome in any particular case.

On one view, it must follow from this that, in order to maintain the principle of legal certainty, and to add value to the privacy lexicon, any decision to grant or refuse relief on such an application should contain as much detail as possible about the factual matrix upon which that decision is based, even if that means paying the price of anonymisation. This is particularly so since the broad parameters of privacy law are now well established. On another, however, there is little point in knowing everything precisely because the uniqueness of the factual matrix in each case impedes its value as precedent.

The issue of disclosure of identity versus disclosure of facts in the context of a privacy case has already been grappled with – by the Court of Appeal last year in JIH. The judgment does not, however, give direct consideration to Article 7 and 10(2) legal certainty arguments. The Court did however recognise (at [25]), that in the majority of cases where the court permits the identity of the claimant to be revealed, that will mean that significantly less other information about the proceedings can be published than if the proceedings had been anonymised. Whether the Court will opt for one or the other in any given case will depend, perhaps unsurprisingly, on the facts. Yet that decision will necessarily have to be made at the earliest stage of proceedings, when least is known.

The true impact of the current trend to prefer disclosure of identity over disclosure of facts, both in relation to the principle of legal certainty and indeed on the way in which Article 10 freedom of expression rights may be exercised, is yet to be felt. It will be interesting to see how this develops in future cases. We suspect that recalibration will be required in the future.

Lorna Skinner is a barrister and Kirsten Sjøvoll a trainee barrister at Matrix Chambers