gazetteHow is an anonymous plaintiff compatible with the public vindication of damage to reputation? … And what is the nature of the evolving relationship between defamation and privacy? Media law academic Dr David Rolph reflects on two significant cases.

The idea of an anonymous plaintiff in a defamation case seems decidedly odd.

imagePlaintiffs suing for defamation seek to protect their reputation – what other people think of them, as Lord Denning (pic) defined it in Plato Films Ltd v Speidel [1961] AC 1090.

They do so in a public forum, in full knowledge that the common law’s strong commitment to the principle of open justice means that the proceedings are public.

One of the major purposes of defamation law is to vindicate the plaintiff’s reputation. The plaintiff’s reputation has been damaged in the eyes of others and a favourable outcome is intended to set the record straight.

If a plaintiff is anonymous, how can other people know if his or her reputation has been vindicated?

Anonymous plaintiffs in defamation cases are not entirely unknown but they have been rare.

Certain factors will lead courts to be more disposed to grant anonymity orders, such as the involvement of children in the proceedings or threats of blackmail.

Applications for anonymity orders might be increasing for other reasons. Two recent cases, one Canadian and one English, illustrate some possible lines of developments in the use of anonymity orders in defamation cases.

In AB v Bragg Communications Inc, AB was a fifteen-year-old girl who sued Bragg Communications in the Supreme Court of Nova Scotia to discover the IP address of the person who had created a fake Facebook profile of her.

She claimed that the fake Facebook profile was defamatory of her, making adverse comments about her physical appearance, her weight and her alleged sexual conduct.

As well as the order disclosing the identity of the creator of the content, AB sought an anonymity order and a publication ban. At first instance, the anonymity order and the publication ban were refused.

Local media outlets became aware of and interested in the story.

AB appealed to the Nova Scotia Court of Appeal and eventually all the way to the Supreme Court of Canada.

The differences between the judgments on appeal could not be starker.

Giving the judgment of the Nova Scotia Court of Appeal, Justice Saunders characterised the tension between the teenager’s right to privacy and freedom of the press and the principle of open justice.

In particular, Justice Saunders emphasised the special characteristics of a defamation action, stating:

“Defamation is a claim that one’s reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law.”

The Supreme Court of Canada also characterised the tension in the same way as Justice Saunders.

It made no reference to the peculiar characteristics of defamation at all.

imageInstead, Justice Rosalie Abella (pic) giving the judgment of the court, accepted the inherent vulnerability of children and particularly the need to protect them from the phenomenon of “cyber-bullying” meant that AB should have the benefit of an anonymity order (but not a publication ban).

Cases involving social media publications might be an area in which anonymity orders are more readily granted in the future.

A reason for this is that social media publications transcend the distinctions made by defamation law historically.

At common law, a distinction was drawn between publications in permanent form (libel) and in non-permanent form (slander). Plaintiffs suing for slander had to, in most cases, prove actual damage, which was understandable given that most cases involved spoken defamation to a limited audience.

By contrast, plaintiffs suing for libel had the benefit of the presumption of damage, which was understandable given that defamation in a permanent form could be circulated more widely and the damage to reputation was more difficult to ascertain.

Social media publications are not readily categorised according to this distinction.

The actual audience to which a social media publication is directed or which in fact consumes it is often small or circumscribed, bringing it closer to slander.

On the other hand, a social media publication is in permanent form, able to be searched and retrieved at a much later date, by people to whom it was not directed, for a range of purposes divorced from its original context.

Suing for defamation upon a social media publication might cause disproportionate harm to reputation – the very fact of suing might draw attention to the defamatory publication, thereby causing greater harm than the original publication ever did.

The issue of anonymity orders in defamation claims has also arisen recently in the English case of ZAM v CFW ([2013] EWHC 662 (QB)).

ZAM brought defamation proceedings against CFW. CFW had alleged that ZAM had engaged in financial mismanagement and paedophilia in separate communications. CFW was apparently attempting to blackmail ZAM after being dissatisfied with distributions from the family trusts. ZAM obtained an interim anonymity order but wanted to make it permanent.

Ultimately, Mr Justice Tugendhat agreed. His Lordship awarded ZAM £30,000 damages. No mention was made of the special characteristics of defamation law or even of the vindicatory purpose of the award of damages.

Mr Justice Tugendhat observed that, “As a matter of principle, there is no reason why an anonymity order should not be made in a defamation action”.

imageHis Lordship (pic) observed that, for some types of allegations, such as paedophilia, “even the most categorical vindication does not prevent a person so accused of having his name permanently linked with an allegation”.

This suggests a more realistic approach to the efficacy of a defamation trial in vindicating a plaintiff’s reputation.

In principle, the defamation trial should serve this purpose. In practice, it does not always.

One of the reasons why ZAM v CFW and other recent English cases have granted anonymity orders in defamation cases is because the understanding of reputation in English defamation law is undergoing a profound change.

Having incorporated the jurisprudence of the European Convention on Human Rights into domestic law, English courts are now treating the right to reputation as a part of the right to a private life.

By considering reputation as part of a right to privacy, English courts might be more disposed to grant anonymity orders, particularly in cases where both the right to reputation and the right to privacy are raised.

Even in AB v Bragg Communications, which was not influenced by the ECHR jurisprudence, courts at all levels were willing to countenance the plaintiff’s right to privacy in a defamation action.

The relationship between defamation and privacy then seems to be evolving.

As legal systems derived from English law develop, in their own different ways, more direct protections of privacy, the relationship between the right to reputation and the right to privacy needs to be explored.

The use of anonymity orders to protect reputation and privacy is just another area for further consideration and reflection.

*Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).

This article was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.