Human rights - Media and entertainment - Sport - Anonymity

JIH v News Group Newspapers Ltd: CA (Civ Div) (Lord Neuberger of Abbotsbury MR, Lord Justice Maurice Kay, Lady Justice Smith): 31 January 2011

The appellant sportsman (X) appealed against an order ([2010] EWHC 2818 (QB)) that he was not entitled to anonymity in proceedings brought against the respondent newspaper publisher (N).

X had been in an apparently long-term and conventional relationship. In the course of that relationship, he had been the subject of a newspaper story concerning an alleged sexual encounter with another person.

That story had been written and published without X’s knowledge or consent. Thereafter, N sought to publish a story concerning X and another alleged sexual encounter with a different person. X applied to restrain publication of that story.

On the basis that the story had the possibility of infringing X’s rights under article 8 of the European Convention on Human Rights 1950. N agreed to a form of order pending trial.

By that order N agreed to submit to an injunction restraining it from publishing: (i) any information contained in a confidential schedule; (ii) X’s identity; (iii) a report on the proceedings. The judge refused to approve the order without first hearing argument. At the conclusion of that hearing, the judge approved the order save in relation to X’s identity.

A subsequent application to the same judge to reconsider that position was refused. X submitted that if the media could publish his name and the substance of the information that he was seeking to exclude from the public domain, then the whole purpose of his seeking an injunction would be undermined and details of his private life unlawfully exposed.

Held: (1) The court summarised a number of general principles to be applied by the courts when apprised of applications for anonymity or other restraints on publication of case details that were normally in the public domain, Scott v Scott [1913] AC 417 HL and R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, (2010) 3 WLR 554 applied (see paragraph 21 of judgment).

(2) Where the basis for any claimed restriction on publication ultimately rested on a judicial assessment, it was essential that: (a) a judge was satisfied that the facts and circumstances of the case were sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings could be reported; (b) the judge should then ensure that any restrictions on publication were fashioned so as to satisfy the need for the encroachment in a way which minimised the extent of any restrictions.

Thus, if a court permitted the identity of a claimant to be revealed, a significant redaction of other information about the proceedings would be likely to occur. Similarly, if a claimant was accorded anonymity it would almost always be appropriate to permit more details of the proceedings to be published.

On the facts of the instant case, it would be right to accede to X’s request for anonymity.

The public interest would be better served by publication of the fact that the court had granted an injunction to an anonymous well-known sportsman with limited detail, rather than being told that it had granted an injunction to an identified person to restrain publication of unspecified information of an allegedly private nature.

Moreover, if the court permitted X’s identity to be revealed without permitting the nature of the information of which he was seeking to restrain to be published, then it would nonetheless be relatively easy for the media and members of the public to deduce the nature of that information by reference to the previous newspaper article that had been published without his knowledge or consent (paragraphs 22, 25, 32-33).

(3) The public’s concern over a perceived ‘recent efflorescence of anonymity orders’ would be substantially met if courts complied with the principle that judgments and orders were made public and that those judgments and orders disclose as much as possible about the case, Re Guardian News and Media Ltd, [2010] UKSC 1, [2010] 2 AC 697 considered (paragraphs 34-35).

Appeal allowed.

Hugh Tomlinson QC, David Sherborne (instructed by Berwin Leighton Paisner) for the appellant; Richard Spearman QC (instructed by Farrer & Co) for the respondent. Gillian Phillips by written submissions for Guardian News & Media Ltd; Marcus Partington by written submissions for Media Lawyers Association.