Oscar Wilde once said that the only thing worse than being talked about was not being talked about. It seems that times have changed, with the thirst for fame and publicity being matched by a surge in the number of injunctions filed in the courts aimed at limiting the extent to which the press can report on the antics of our celebrities and famous sport stars.
In this Red Line we consider the circumstances in which a court will make orders preventing publication of information about ongoing proceedings. We will look first at a very recent UK case involving a high profile sportsman, before considering the approach of the Guernsey courts.
JIH v News Group Newspapers Ltdi
On 31 January 2011 the Court of Appeal adjudicated on the case of a ‘well known sportsman’. Having been in a long term relationship with one individual ‘A’, a story had been published about the sportsman alleging that he had a sexual liaison with another person, ‘B’. However, the case concerned a story which certain newspapers wished to publish about the sportsman regarding an alleged sexual encounter with another person, ‘C’.
Late in 2010 the sportsman found out that C had told the defendant in the case, News Group Newspapers Ltd (‘NGN’), about the alleged encounter and that NGN intended to publish a story in The Sun. Proceedings were duly commenced seeking an order preventing the publication of information contained in a Confidential Schedule, with the Schedule setting out information concerning the alleged sexual relationship with C during the sportsman’s relationship with A.
Having considered matters, NGN entered into negotiations with the sportsman regarding the story. In simple terms, NGN accepted that publication of the information in the Confidential Schedule at this stage (i.e. before a trial) would arguably infringe the sportsman’s rights to respect for his private life under Article 8 of the UK human rights legislation.
A draft order was prepared which said, in essence, that NGN would submit to an injunction preventing it from publishing all or any part of the information contained in the Confidential Schedule (save to the extent that any such information was disclosed in an open judgment of the court) and, crucially, the identity of the sportsman would not be disclosed. The draft order also proposed that the hearing of the sportsman’s application would be in private and not reported.
When the draft agreed order was presented to the High Court judge for approval, he decided that he was not prepared to make the order without first having heard argument persuading him that it was appropriate to do so. After hearing argument, he made an order restraining publication of certain information but refusing the sportsman the anonymity which the sportsman had sought. The sportsman appealed to the Court of Appeal. The Court of Appeal decided that, where an injunction restricting publication of private information was sought it would generally order either that the claimant’s name be anonymised but the information disclosed or that the claimant could be named but the nature of the information would not be revealed.
The Court of Appeal held that the judge’s approach to the parties’ proposed order reflected the wellestablished and fundamental principle applied by the courts of ‘open justice’. What is ‘open justice’? In a nutshell, it is embodied in court proceedings which take place in open court and accessible to the public. As was once said: "in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respectii."
As with most fundamental principles, however, the open justice principle is not an absolute one. It will be, and often is, qualified in appropriate cases. In the case referred to above, the Court noted that the principle of open justice required a balancing act to be performed. On the one hand, there is the individual’s right to respect for his or her private and family life and, on the other, the media’s right to freedom of expression.
The Court confirmed the well-settled statement that public coverage of court proceedings is a fundamental aspect of freedom of expression in society and that it was of particular importance that the press be able freely to observe and report on court proceedings. However, where the Court is satisfied that information concerning a case should not be publicised, it must then consider how far it is necessary to impose restrictions on reporting the case. To state the obvious, if an injunction has been granted preventing the publication of private information, it may render that injunction meaningless if the injunction is not coupled with reporting restrictions: otherwise, it might be obvious to whom the injunction refers.
General principles on reporting restrictions
The Court summarised the principles which would be followed in cases where requests for reporting restrictions were made. The general rule is that the names of the parties to an action will be included in orders and judgments of the court. Further, there is no general exception which applies for cases in which private matters are under consideration and the starting point is that an order for anonymity or for any other order restraining the publication of the details which would normally be reported about cases involves a derogation from the open justice principle.
That being so, where the court is asked to make any such order it will only do so after closely scrutinising the application and considering whether a restraint on publication is necessary, and, if it is, whether there is any alternative to the restraint sought. Where the court is asked to order that there be no publication of the parties’ names and/or the subject matter of the proceedings, the court should ask itself whether there is sufficient public interest in publishing a report of the proceedings which identifies the relevant party or parties and which justifies encroaching on that party’s right to respect for his or her private and family life.
Importantly, no special treatment will be given to public figures or celebrities, who are entitled to the same (no more and no less) protection as others. The court should not make an order for anonymity or reporting restrictions just because the parties agree to this, because the parties cannot waive the public’s right to open justice. Any order made should be reviewed periodically. Finally, where an order for anonymity or reporting restrictions is made, this should not stop the Court from issuing a judgment, although clearly some editing of the judgment might be required.
Click here to view the picture.
The Guernsey courts have not been required to deal with the same sort of privacy claims from high profile celebrities, testament perhaps to the efficacy of the Guernsey grapevine. However, the Guernsey courts have had occasion to grapple with privacy issues and there are several examples of reporting restrictions being placed in proceedings afoot in the Guernsey courts.
As stated by the Deputy Bailiff in the case of In the matter of Xiii, in Guernsey the well-established principle is that the courts should, wherever possible, administer justice in public but in exceptional cases the courts will sit in private. These exceptional cases will include, for example, cases concerning children or vulnerable persons, sensitive family matters, matrimonial or trust matters and ex parte injunctions. In that case, the Court directed that the hearing of the case be in private and that the applicant’s identity should not be disclosed in the judgment which was subsequently published.
Similarly, in the proceedings entitled In the matter of the H Trust, the Court ordered that the judgment be released to the public in an anonymised form so as to preserve the parties’ anonymity, this being deemed to be in their best interests and those of the trust to which the applications related. The case had involved an application by trustees to vary a trust for the benefit of beneficiaries, one of whom suffered from autism, with the other being a minor.
The Court has also stated that it will have regard to the provisions of the Civil Procedure Rules in England and Wales on the exceptions to the general principle of open justice, where there is no Guernsey precedent to followiv. Finally, where a privacy order is made, the Court will regard publication of material infringing the order as a very serious breach of its order and take action accordingly.
And so we have it: ‘private and confidential’ does, occasionally, mean ‘private and confidential’. Oscar Wilde may not have approved, but - as ever – he did have a suitable last word, on the basis that ‘arguments are to be avoided; they are always vulgar and convincing’.