This man, known only as PPT, argued that since publication would ‘expose him to a real and immediate risk of serious harm or death,’ he was entitled to a final injunction preventing these allegations being published under Articles 2, 3 and 8 of the European Convention on Human Rights. On 3 November, and despite agreeing that the risk to his physical and psychological integrity was real and grave, the High Court dismissed PPT’s claim, essentially on three grounds: 1) that, as far as Article 2 & 3 are concerned, the Court is under no ‘operational duty’ to protect PPT from the dangers that the publication posed; 2) that the Article 8 claim did not disclose a cause of action; and 3) even if it did, the factual strength of the competing rights-claims (ie, Article 8 vs Article 10) was firmly in the defendant’s favour.
Since I have no expertise on Articles 2 & 3, I have nothing to say about the Court’s finding here (albeit, as a non-specialist, I find it counter-intuitive that the Court should think itself so powerless). (Its reasoning in respect of Article 2 is set out at paras [244]-[258] and Article 3, at [259]-[263]). Instead, this is a post solely about the Article 8 aspect of the decision. Specifically, I want to ask whether this decision – that PPT is not entitled to anonymity in respect of serious allegations against him – is coherent given what we might call the ZXC v Bloomberg LP principle that police suspects are entitled to such anonymity – that is, at least until an arrest (should it occur), or unless there is (an exceptional) operational reason for disclosing his or her identity prior to that.
Let us begin by recognising the seriousness of the allegations against PPT. We do not have the specifics, but we are told that some are sexual in nature, and that they relate to his interactions with women and girls (see, eg, [297]). For the purposes of this post, I assume that they are criminal (though the judgment does not confirm this). To be sure, it cannot be doubted (and, certainly, I do not) that the public interest demands sexual predators are held to account and punished appropriately. The only doubt I wish to express in this post concerns the manner by which this end is achieved. Thus, this is not a post defending PPT; it is a post defending the process by which the administration of justice is secured.
No Cause of Action Established
At the heart of anonymity order proceedings lies the open justice principle. Since anonymity represents a derogation, a permanent injunction should be issued only when ‘strictly necessary in the interests of justice’ [14] and, even then, ‘must go no further than is necessary to achieve its protective purpose’ [15]. The question of ‘justice,’ therefore, must be central to the Court’s reasoning in these decisions. Interestingly, this question is never squarely faced by the Court – at least, not in terms of the administration of justice. Instead, the judicial function in determining justice is taken out of the picture and replaced by an idealised but non-specific image of public discourse, as we shall see. This omission is striking.
The Court found that, having dismissed PPT’s claims under Articles 2 & 3, Article 8 provided no alternative means of redress. PPT, it said, had failed to ‘identif[y] a proper domestic juridical basis for the injunction sought.’ [299]
‘300. The proposed publication would be the act of private media organisations. Article 8 does not itself create a free-standing cause of action by which one private person may restrain another. Section 6 of the Human Rights Act 1998 requires the Court to act compatibly with Convention rights when exercising its jurisdiction, but it does not confer a jurisdiction or cause of action which the Court does not otherwise possess…’
This is correct – but does not quite tell the entire story. Yes, the common law cannot invent new causes of action, but it is required to develop pre-existing ones to ensure the Court’s obligation under s.6 is satisfied.
To be sure, the Claimant did not plead his case in misuse of private information. This is understandable. As the Court in PPT explained, at [293] ‘The Claimant accepts that the proposed publications concern allegations of wrongdoing rather than information which he alleges to be private.’ Thus, PPT is not in the same position as, say, ZXC, who could say that there was a reasonable expectation of privacy in the information he had been interviewed by the Police.
Yet, is that all that the decision in ZXC v Bloomberg LP (and the cases which preceded it) represents? Consider what Lord Justice Simon said in the Court of Appeal, in ZXC, at [82]:
‘Since the matter arises for decision in the present case, I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty’ (Emphasis added).
The Supreme Court agreed with this reasoning and noted, also, that ‘the rationale for this uniform general practice [ie, of the Police not disclosing a suspect’s identity] is the risk of unfair damage to reputation, together with other damage.’ [SC, 81]. It held, further:
‘The private nature of information that a person, prior to charge, is subject to investigation by the police has been considered in several first instance judgments. In each case, the characterisation of such information as private was based on the potential that its publication would ordinarily cause substantial damage to the person’s reputation, and other damage.’
This is a sophisticated interpretation of privacy that detaches its meaning from the specifics of the allegations and re-attaches it to the effect of publicising those allegations upon a person’s private life. We see this clearly, in the Supreme Court’s ZXC decision at paragraphs [101]-[109], in which the notion of a ‘reasonable expectation of privacy’ is tied, specifically, to the presumption of innocence.
Given this, I find strange that the Court in PPT (at [302]) would declare there could be no reasonable expectation of privacy in the information that the Defendant’s wish to publish. Let’s be clear: that information is a series of serious allegations that strike at the presumption of innocence. If it is the case that the Court could not apply the ZXC principle to PPT’s situation because it was not pleaded then that is understandable, if regrettable. I struggle to accept though that the principle could have no application here. Indeed, I find it odd that PPT would be better protected if he was actually being investigated by the police for this crime than circumstances in which he is not (we may assume).
If there is a lacuna here (regarding the absence of criminal investigation), then the Strasbourg jurisprudence provides a further reason why it should be addressed. For, it is tolerably clear that Article 8 imposes a positive obligation upon the State to safeguard the Article 6 presumption of innocence under Article 8 in these circumstances. Whereas, in PPT, the Court implied it was hamstrung because this was a dispute between private parties, the European Court of Human Rights (“ECtHR”) has reiterated that this is no barrier to human rights law development. For example, n White v Sweden, it said:
‘Noting that the applicant did not complain of an action by the State, but rather the lack of adequate State protection, the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals.’ [20]
Member states, of course, have a wide margin of appreciation in such circumstances – but that does not preclude the possibility of the Strasbourg Court finding that a positive obligation exists.
Indeed, in A v Norway, the ECtHR found that such an obligation existed and had been breached by press reporting that would cause the ordinary reader to conclude the applicant was a suspect in murder case. Whilst the fact pattern is not the same, there are similarities in the ECtHR’s reasoning that bear upon the decision in PPT v ITN & Guardian. In that case, (at para [73]) the ECtHR relied upon Recommendation 2003/13 of the Council of Europe’s Committee of Ministers on the provision of information through the media in relation to criminal proceedings and, specifically, Principle 8 (protection of privacy in the context of on-going criminal proceedings):
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. (Emphasis added).
Although A v Norway arose from a defamation action, it was pleaded under Article 8. As the ECtHR said: ‘The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention.’ [63].
It held, further, that ‘…the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person.’ To my mind, this would capture the circumstances of PPT: that, even though defamation was not pleaded, the nature of these serious allegations is such that it speaks to this broad, conceptual understanding of Article 8 and, further, comes within it precisely because of the impact upon the ‘physical and psychological… integrity’ of PPT. Having found that this was ‘gravely’ at risk, the High Court in PPT had the opportunity to say that Article 8 was not only at stake, but operative.
Although the Judge in PPT said, at [303], that, in effect, the Claimant cannot rely upon Article 8 by focusing upon ‘the consequences of publication, rather than the information published, as the relevant interference,’ this is not what Provision 8 of Recommendation 2003/13 says (notice its use of the word ‘effect’) and neither do I think it reflects the reasoning in ZXC.
The Balance between Article 8 and Article 10.
In PPT, the Court said that even if it was wrong on jurisdiction, the defendants would succeed in the balancing exercise because, although the interference with Article 8 was ‘grave,’ the Article 10 claim would weigh more heavily in the balance. [307]-[310]; [315]-[321]. This strikes me as implausible based upon the Court’s own findings – this is important since even though member states have a wide margin of appreciation on such matters, its reasoning must stand up to scrutiny.
In several places, the Court describes the Article 8 rights-claim in the strongest possible terms. For example, having said of the Articles 2 and 3 claims, at [166], that the risk to life is ‘genuine, grave and closely connected to the Court’s decision and any subsequent publication’ and that both ‘give rise to a real and immediate risk,’ it went on to say, at [307], ‘I accept that the proposed publications would interfere seriously with the Claimant’s private life’; at [308], that ‘pt]he interference would be exceptionally grave… Those consequences would substantially restrict his autonomy, his ordinary activities and his ability to maintain personal and family relationships’; and, at [310], ‘[t]hose conclusions give the Claimant’s Article 8 interests very substantial weight.’ This suggests that the Article 8 is to be afforded the highest weight it can have; certainly, it would take something extremely weighty, on the opposite scale, to defeat it – and, I would say, the Court does not explicate the Article 10 in such sufficiently weighty terms.
To be sure, in calculating the strength of the Article 10 claim, the relationship between the seriousness of the allegations and the public interest in making them public must be carefully handled but separated. Specifically, we must recognise that the Court made no finding on the veracity of them (see [8]). Returning to the presumption of innocence and questions of justice, I question why the Court should find there would be an ‘exceptionally serious interference’ with Article 10 by preventing publication of the allegations given that, at most, all the Court could say of that public interest was that it was ‘capable of making a significant contribution to public debate’ (emphasis added) about ‘the conduct of a prominent person and the alleged use of status, influence and access in dealings with women and girls. The subject matter includes alleged abuse of power, sexual misconduct and inappropriate conduct towards younger or vulnerable persons,’ [316].
Apparently aware of the inherent weaknesses of this level of contribution, theJudge added:
‘The public interest is not exhausted merely because there is already a general public debate about abuse of power or misconduct by prominent people. Journalism contributes to such debates through the investigation and reporting of particular facts and experiences. Reporting an individual case may illuminate the operation of power, enable alleged victims or witnesses to give accounts of their experiences and provide information by which the public and relevant institutions can assess matters of legitimate concern.’ [317]
This is an important point, of course, but does it misrepresent the situation? Granting a permanent anonymity order in these circumstances would not be the end of the story. Privacy does not protect proven criminal activity. It is not clear who these institutions are – they could be the employer and/or the police. These institutions should be investigating PPT. If they have not done so, why not? If they have, what did they find? The public interest is best served by the police investigating PPT’s crimes, rather than the public, via the press. As with Russell Brand, it is to be hoped that PPT will face justice, in the courts, for any crimes he has committed – but let us not give him the chance to plead he has been denied a fair trial by reason of precipitous press coverage.
Paul Wragg, Professor of Media Law, University of Leeds