Should the parties in privacy cases be anonymised? - a summary of the recent judgments

14 January 2011. Published by Keith Mathieson, Partner

Since the end of the summer at least eight judgments have considered whether the parties to successful applications for privacy injunctions should be anonymised.

The results (in chronological order) are as follows:

DFT v TFD: both parties anonymised.

AMM v HXW: both parties anonymised.

Gray v UVW: defendant anonymised.

JIH v News Group Newspapers: neither party anonymised originally, but claimant's identity may not now be disclosed following a successful appeal to the Court of Appeal by the claimant: the Court of Appeal judgment is here.

Ntuli v Donald: neither party anonymised.

KJH v HGF: both parties anonymised.

XJA v News Group Newspapers: claimant anonymised.

POI v The Person Known as "Lina": claimant anonymised.

The following principles emerge from the cases:

1.         An order for anonymity is a derogation from the principles of open justice.  It may only be made if this is 'necessary' on the facts of the case.  The test is whether there is sufficient public interest in publishing a report of the proceedings which identifies the claimant such as to justify any resulting curtailment of his right to and his family's right to respect for their private and family life: Secretary of State for the Home Department v AP (No. 2) [2010] UKSC 26.

2.         The court's decision whether or not to grant anonymity to a party is not the exercise of a discretion but is a matter of obligation depending on the application of the above test: see AMM v HXW [2010] EWHC 2457 at [30] to [36].

3.         If there is a serious risk that the private information which the injunction is designed to protect will emerge if the claimant (or another party) is identified, a provision for anonymity will usually be necessary: see DFT v TFD [2010] EWHC 2335.

4.         The court must consider the extent to which identification of a party will interfere with that person’s Article 8 rights.  Not all threatened interferences with a person's Article 8 rights will be sufficiently serious to justify an anonymity order: see JIH v News Group (No 2) [2010] EWHC 2979 at [30] and [31].

5.         Naming a party will not necessarily lead to the private information being disclosed.  An alternative to anonymising the parties may be to restrict publication of the subject matter of the action: see, for example, Gray v UVW [2010] EWHC 2367and Ntuli v Donald [2010] EWCA Civ 1276at [55].  The principle of open justice requires the court to give judgment in a way that allows as much information as possible to be made publicly available so far as that is consistent with protecting the parties’ right, including their Article 8 rights.

6.         If, on the other hand, the subject matter of the case is disclosed in the judgment, the case for anonymity will usually be overwhelming.  Even where the parties have been anonymised, the court may still, in appropriate cases, impose restrictions on what may be published to avoid the risk of "jigsaw" identification (putting various pieces of information together and thereby identifying the claimant): see, for example, DFT v TFD.

7.      The public interest may often be better served if the media are permitted to publish (a) details of the type of case (e.g. a sexual liaison between a sportsman in an apparently monogamous relationship and a third party) rather than (b) the name of the individual who is seeking to protect an unspecified aspect of his or her alleged private life by means of an injunction.  The former information would normally enable the public to have a much better idea of why the court acted as it did than the latter information.

8.         Where there are grounds for believing the claimant has been subject to blackmail threats, there is a strong case for conferring anonymity: "The fact that the applicant has been blackmailed should not be published" (Sharp J in DFT v TFD).

9.         The fact that the parties to the proceedings may consent to anonymity does not relieve the court of its obligation to consider the effect of an anonymity order on the Article 10 rights of third parties: see Gray v UVW at [33] and JIH v News Group at [3].

A common feature of the three cases in which both parties were anonymised was the threat of blackmail by the defendant.

In DFT v TFD (more fully discussed here) Sharp J held that it was necessary to anonymise the claimant because if he was identified by name, there was a serious risk that the private information which the order was supposed to protect would emerge and the purpose of the order would thereby be frustrated.  (The judge did not deal specifically with the anonymity of the respondent, but it may be inferred that she thought naming the respondent would pose a similar risk of the private information emerging.)

Sharp J also took account of the blackmail element in deciding the anonymity issue.  The claimant's counsel had argued that anonymity for the claimant was necessary as there were strong grounds for believing the respondent was a blackmailer seeking to extort money by threatening to disclose private information about the claimant.  Sharp J considered that "the blackmail element of of this case brings extremely strong public interest considerations into play.  The fact that the applicant has been blackmailed should not be published".

Less than three weeks after Sharp J's judgment in DFT v TFD, Tugendhat J gave judgment in a very similar privacy case also involving an alleged blackmail attempt: AMM v HXW.  He too ordered that there should be no publication of any information liable to lead to the identification of the parties save for that contained in the court's own judgment.  He observed that the court's decision whether or not to grant anonymity to a party was not the exercise of a discretion but was a matter of obligation depending on the application of the test summarised by Lord Rodger in Secretary of State for the Home Department v AP (No. 2): the Court must ask itself whether there is sufficient public interest in publishing a report of the proceedings which identifies the claimant such as to justify any resulting curtailment of his right to and his family's right to respect for their private and family life.

In deciding in AMM v HXW that anonymity was necessary, Tugendhat J was strongly influenced both by the need to protect the claimant's Article 8 rights and by the public interest in preventing and punishing blackmail, it being important not to discourage blackmail victims from coming forward for fear that by doing so, their identity will be revealed.  In relation to whether an order restricting publication of the information in question was a feasible alternative to an anonymity order, the judge said this:

… where a claimant alleges he is being blackmailed, the court may be faced with limited choices.  One choice is to refuse an anonymity order.  But in that case, if the blackmailer's threat is to be thwarted, the court will restrict publication of the information which is the subject matter of the action.  The alternative is for the court to grant the anonymity order.  The court can then permit publication of some of the facts about the action, including the allegation of blackmail.  If the court adopts that course, then the anonymity order should suffice to prevent publication of the fact that it is the applicant who has been blackmailed.

The judge decided that because an article about the case in the Daily Mail had published some important items of information about the subject matter, the only alternative now open to the court was an anonymity order.  At paragraph [41] of his judgment the judge noted that the Daily Mail article contained snippets of information that contributed to an increased risk of "jigsaw identification".  He observed that such identification "would defeat the purpose of this action and, in the process, achieve the purpose of the alleged blackmailer".

In Gray v UVW, where the proceedings for misuse of private information were stayed following undertakings by the defendant not to disclose the information, Tugendhat J declined the claimant's request for anonymity:

In the present case the reason advanced by the Claimant as to why his identity should not be disclosed is weak.  He refers to the possibility that the media may speculate as to what the information is.  But in this connection I remind myself of the approach of the Supreme Court in [In re Guardian News and Media Ltd [2010] UKSC 1] at para [72]:

… the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press. James Madison long ago pointed out that “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press”: “Report on the Virginia Resolutions” (1800), in Letters and Other Writings of James Madison (1865) Vol 4, p 544. … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation.”

The judge held that it was up to the claimant to make out a case for anonymity and in this case he found there were no "extreme" circumstances – such as blackmail, fear of violence or a threatened contempt of court – such as to justify anonymity and a departure from the principle of open justice.

On the other hand, the judge decided the defendant was entitled to anonymity.  He found that the defendant's Article 8 rights were engaged; that the allegations against the defendant were serious; that the defendant was a person of good character; and he/she had been caused distress by the proceedings.  Since the judge was not being asked to determine the merits of the claimant's case, he was unable to form a view about whether the proceedings against the defendant were properly brought (it being possible that the defendant had consented to the injunction purely in order to avoid litigation).  In the circumstances, he considered it necessary to protect the Article 8 rights of the defendant by ordering that he/she should not be identified.

In JIH v News Group the claimant obtained an injunction against the defendant newspaper publisher preventing it from publishing certain private information about him and others.  The order was made by Nicol J on 13 August 2010 following an evening hearing at which both parties were represented by Counsel.  The order included a provision that the claimant’s identity should be anonymised.

Following the hearing, the claimant made an application for the order to be continued.  The defendant agreed to that application and on 20 October Nicol J made an order continuing his injunction pending a further hearing on 20 September.  In the meantime, the claimant served the order on six media organisations.  Some of those organisations requested more information from the claimant but none of them made any application to vary or discharge the order.

Before the return date (the date on which the case was to come back before the court), the parties settled their dispute and asked the court to approve a consent order continuing the injunction (including the provision for anonymity).  Tugendhat J was not prepared to approve the order just because the parties themselves had agreed to its terms since, being a derogation from open justice, it affected the rights of the public.  Not only did it provide the claimant with anonymity; it also prevented reporting of the subject matter of the proceedings.

Having considered evidence and submissions from the parties, Tugendhat J refused to permit the claimant to remain anonymous.  He held that anonymisation and the withholding of information about the subject matter of proceedings are alternative, not complementary, forms of protection against the disclosure of private information.  In this case:

… it would not be possible to make an order or give a judgment which disclosed any information about the subject matter of the action which did not thereby make it likely that the Claimant would be identified. To identify both the subject matter and the Claimant would defeat the purpose of the proceedings. Accordingly, the only practical question open to the Court is whether to withhold the identity of the Claimant, in addition to withholding all information about the subject matter of the action. In this case the alternatives canvassed by Mr Tomlinson [making the claimant anonymous or restricting publication of the subject matter] are theoretical not real. The only real choice is to allow the public to know the Claimant’s identity or to allow them to know nothing at all about the action.

Having considered the likely effect of disclosing the claimant’s identity, and noting the absence of evidence from the claimant that he would not have commenced the proceedings if he had thought his name might become public, the judge decided that any interference with the claimant’s rights arising from his identification would be limited provided the subject matter of the case was not published.  In those circumstances, he decided that the identification of the claimant was justified by the general public interest in publishing a report of proceedings which identified him.  The order made by the judge provided that there should be no publication of any matters beyond what was included in his judgment, the private information in question being included in a confidential schedule to the order.

The identity of JIH was not disclosed pending an appeal against the judge’s order.  In the meantime, the case went back before Tugendhat J on the claimant’s application that publications in two different newspapers in the period since the judge’s order meant that if the claimant’s identity were to be published in the future, that disclosure, taken together with the information published by the newspapers, would mean that the private information sought to be disclosed would become public.

Tugendhat J decided that what the newspapers had published was “at a high level of generality” and, on the scale of possible interferences with the private lives of the claimant and others, the disclosures “did not rank high”.  He therefore declined to vary his previous order lifting the claimant’s anonymity: JIH v News Group Newspapers (No. 2).  He did, however, note that it was a matter of great concern that the publications had taken place and he reminded editors of their duties and responsibilities under Article 10(2) to ensure that they comply with orders of the court.

When the case reached the Court of Appeal, Tugendhat J's decision that the claimant's identity could be revealed was reversed.  The court acknowledged the importance of being able to name JIH but decided on the facts that naming him risked defeating the purpose of the injunction as publicly available information would enable people to piece together his identity even if the court prohibited publication of the nature of the information publication of which he was seeking to prevent.  The court was impressed by the argument that it would in most cases serve the public interest better for the media to report as much as possible about the facts of the case (such as the nature of the information sought to be protected) rather than the claimant's identity: such information would better enable the public to understand why the court had acted as it did.

Ntuli v Donald concerned an injunction to prevent a former girlfriend of Howard Donald, a member of Take That, from disclosing “any intimate, personal or sexually explicit details about the relationship”.  The injunction ordered by Eady J not only anonymised the parties; it was a “superinjunction” that restrained the defendant and others from even mentioning the fact that the order had been sought and obtained.

On appeal by the defendant, the Court of Appeal removed the provision for anonymity.  (It also removed the superinjunction element: see the case report here).    Whatever expectation of privacy Mr Donald might have in respect of the details of his relationship with Ms Ntuli, it was perfectly possible, said the Court of Appeal, for its judgment to be given and reported in a form that did not undermine his privacy.  The court said it would have been “possible and appropriate” for Eady J to have written his judgment in a publishable form and thereby avoided the need for the parties to be anonymised.

In KJH v HGF the evidence before the court “established to a high degree that of probability that KJH was the victim of blackmail involving the threat of the revelation of stolen private and confidential information”.  The judge was satisfied that there was no public interest in disclosure of the information, which did not reveal wrongdoing, sexual or otherwise, by the claimant. Having regard to the strong public policy considerations relating to blackmail set out by Tugendhat J in his judgment in AMM v HXW, Sharp J decided it was necessary to derogate from the principle of open justice by ordering that the parties should be referred to by initials.  To emphasise the sensitivity of the matter, the judge prefaced her judgment with the instruction: “It is ordered that publication of any information as to the subject matter of these proceedings or the identity of the parties to these proceedings, is limited to that contained in this judgment”.

Just as News Group Newspapers had consented to the claimant remaining anonymous in JIH, so too it was willing to consent to the claimant remaining anonymous in XJA.  But because an anonymity order affects the rights of third parties, the consent order required the approval of the court.  Unlike Tugendhat J in JIH, Sharp J in XJA decided that it was necessary to protect the claimant’s privacy by imposing an order that he should remain anonymous. Sharp J concluded on the facts that there was no sufficient general public interest in identifying the claimant at this stage fof the proceedings to justify and resulting curtailment of XJA’s right and his family’s right to respect for their private and family life.  In the judge’s view, identification of XJA “could seriously affect his family life and it was a relevant consideration that the central information with which the action was concerned was said to be false.

In POI v The Person Known as "Lina" [2011] EWHC 25, there was evidence that the respondent was seeking to blackmail the claimant.  Tugendhat J made an order for anonymity on ground that it was strictly necessary in the interests of justice: if the claimant were to be identified, then it was likely that persons who knew, or learnt, both that the applicant had issued the proceedings and what was already in the public domain would be able to deduce what the private information was about.  It was likely in those circumstances that "the policy of the law to protect those alleging they are victims of a blackmailer would be defeated".  The injunction, including the anonymity order, was later continued by Supperstone J: [2011] EWHC 234.

See further sections 3.9.1 and 10.3 of The Privacy Law Handbook

This post was amended on February 1 and March 1, 2011

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