children_silhouetteThe judgment in MXB v East Sussex Hospitals NHS Trust ([2012] EWHC 3279 (QB)) raises the short but important point that orders made under section 39 of the Children and Young Persons Act 1933 (“the CYPA”), which prohibit the reporting of proceedings in a manner likely to lead to the identification of a child or young person concerned in them, may not extend to online reporting.

MXB concerned an application for anonymity in the context of an application under CPR 21 for approval of an infant settlement, and was the latest of a number of such approval applications heard by Mr Justice Tugendhat in which the Court had heard submissions to the effect that, because an anonymity order made under section 39 did not extend to web-based reporting, it would not on its own provide sufficient protection for the child concerned.

Section 39(1) of the CYPA provides:

“Power to prohibit publication of certain matter in newspapers.

(1)  In relation to any proceedings in any court …, the court may direct that-

a)    no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein:

b)    no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the direction of the court.

Section 57(4) of the Children and Young Persons Act 1963 provides that the scope of section 39 (and others) to “shall, with the necessary modifications, apply in relation to sound and television broadcasts as they apply in relation to newspapers”.

In a judgment handed down on 20 November 2012, Mr Justice Tugendhat pointed out that because section 39 of the CYPA is restricted to reports in newspapers and sound and television broadcasts it may not apply to other forms of reporting, such as internet or web-based social media sites. Although it was not necessary on the application before him to decide the scope of section 39, he did conclude that “there is force in the argument that section 39 … may not give the court jurisdiction to prohibit the making of a report otherwise than in a newspaper or a sound or television broadcast” [13].

The Judge added that

The submission made to me in this case is of obvious relevance to the criminal courts in which orders under section 39 … are commonly made, and I have drawn this judgment to the attention of those who may be concerned as to the implications of an argument that an order under section 39 may not achieve the effect which those making it intend” [24].

In a postscript to the judgment, Mr Justice Tugendhat noted (at [20] to [23]) that in passing the Contempt of Court Act 1981 and the Defamation Act 1996 Parliament recognised that reports of proceedings otherwise than in a newspaper required recognition. Both simply refer to “a report” and do not limit that report to any specified medium.

There are, however, a number of other statutory provisions whose application to online reporting may present similar problems to those raised in relation to section 39. For example, section 8(1) of the Magistrates’ Court Act 1980 provides that:

“Except as provided by subsections (2), (3) and (8) below, it shall not be lawful to publish in Great Britain a written report, or to include in a relevant programme for receptionin Great Britain a report, of any committal proceedings in England and Wales containing any matter other than that permitted by subsection (4) below”.

Whilst it appears that this provision covers internet-based written reporting, it is questionable whether it would extend to, say, a podcast? Further, section 71(1) of the same Act provides:

“In the case of family proceedings in a magistrates’ court … it shall not be lawful for a person to whom this subsection applies-

(a)          to print or publish, or cause to be printed or published, in a newspaper or periodical, or

(b)          to include, or cause or procure to be included, in a programme service (within the meaning of the Broadcasting Act 1980) for reception in Great Britain,

any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below.”

Section 71(1B) further provides:

 “Subsection (1) above applies-

(a)   in relation to paragraph (a) of that subsection, to the reporter, editor or publisher of the newspaper or periodical, and

(b)   in relation to paragraph (b) of that subsection, to any body corporate which provides the service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.”

Whilst it may be arguable that websites operated by newspaper publishers may be caught by virtue of section 71(1B)(a) and websites operated by broadcasters may be caught by section 71(1B)(b), it is immediately apparent that there is a potentially huge lacuna in relation to other web-based reporting.

Sections 8 and 71 of the Magistrates’ Court Act 1980 are just two further examples of concerning anomalies in the law relating to the reporting of proceedings. It would be useful to collate other examples of potential anomalies for onward referral to those considering the section 39 issue and readers are invited to provide any of which they are aware in the comment box below.

Lorna Skinner is a barrister at Matrix Chambers