Media and entertainment – Anonymity – Freedom of expression – Reporting restrictions

In the matter of Guardian News and Media Ltd and Ors sub nom Mohammed Jabar Ahmed and Ors v HM Treasury: Mohammed Al-Ghabra v HM Treasury: HM Treasury R (on the application of Hani El Sayed Sabaei Youssef: SC (Lord Phillips (president), Lord Hope (deputy ­president), Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Kerr): 27 January 2010

The applicant media organisations applied to set aside anonymity orders made by the administrative court in favour of the appellants (X, K, M and G) and one respondent (H).

H and the appellants were alleged to have links with al-Qaida and were suspected of facilitating acts of terrorism. As a result, they were designated under article 4 of the Terrorism (United Nations Measures) Order 2006 and their assets were frozen. They brought proceedings challenging the freezing orders. G and H’s designation had been publicised by the Treasury and both were named in the press. In addition, H had brought earlier proceedings against the Home Office for wrongful imprisonment, in which he was named and his full circumstances described. He had also been named by the press in various articles since 1999. The anonymity order in relation to G was lifted before the instant hearing. X and K had given no instructions to their counsel in relation to the instant hearing and had left their home address. However, if they were named it would have the effect of identifying their brother (M). M submitted that publication of his name would breach his rights under article 8 of the European Convention on Human Rights 1950 and cause serious damage to his reputation in circumstances where he was not charged with any offence and was unable to challenge the allegations made against him. He also argued that if he were identified it would lead to a loss of contact with the local Muslim community and adversely affect his family. The media organisations argued that the anonymity orders breached their rights under article 10. They relied on a decision of the European Court of Human Rights (ECtHR), Karako v Hungary (39311/05), unreported, 28 April 2009 ECHR, and maintained that M’s reputation did not fall within the scope of article 8.

Held: (1) In Karako the ECtHR had accepted that some attacks on a person’s reputation could be of such a seriously offensive nature as to have a direct effect on the victim’s private life. However, the court’s conclusion that Karako’s article 8 rights had not been infringed did not mean that the court had proceeded on the basis that Karako’s claim did not fall within the scope of article 8, Karako explained. In Karako no specific effects on the victim’s private life were mentioned by the court. However, in the instant case, M had explained how he anticipated that his private life would be affected if his identity were revealed. Accordingly, both article 8 and article 10 were applicable and the court had to weigh the competing claims of M and his family under article 8, and of the press under article 10. The question for the court was whether there was sufficient general public interest in publishing a report of the proceedings which identified M to justify any resulting curtailment of his right, and his family’s right, to respect for their private and family life, Von Hannover v Germany (59320/00) [2004] EMLR 21 ECHR considered, and Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 applied.

(2) In the circumstances, there was a powerful general public interest in identifying M which justified curtailment of his article 8 rights. M’s argument really amounted to saying that the press should be prevented from printing what was true for fear that some of those reading the reports might misinterpret them and act inappropriately. Doubtless, some might indeed draw the unjustified inference that M feared. However, there was no reason to assume that most members of the public, including the local Muslim community, would be unable to draw the necessary distinction between mere suspicion and guilt, and to respond appropriately to any revelation that the Treasury suspected that M might have facilitated terrorism. Furthermore, a report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Readers would be less interested and editors would then tend to give the report a lower priority. In that way, informed debate about freezing orders would suffer. If newspapers could identify the people concerned, they could give a more vivid and compelling account which would stimulate discussion about the use of freezing orders. A more open attitude would be consistent with the correct view that freezing orders were merely indicative of suspicion rather than guilt. By concealing identities the courts were actually helping to foster an impression that the mere making of an order justified sinister conclusions about those individuals. That was particularly unfortunate when they were unlikely to have any opportunity to challenge the alleged factual basis for the orders.

(3) The evidence of the potential effect on M’s private and family life was very general and, for that reason, not particularly compelling. The apparent lack of reaction to the naming of G was also relevant, since it suggested that the impact of identification on an individual’s relationships with the local community was not likely to be as dramatic as the judge had anticipated when making the order. The anonymity order in relation to X, K and M was therefore set aside.

(4) There had never been any justification for the order in favour of H, especially given that he had already been named in a press release several years ago, and had been named in proceedings in public and in numerous other press articles. H’s order was therefore also set aside.

Application granted.

Geoffrey Robertson QC, Anthony Hudson (instructed by Finers Stephens Innocent) for the applicants; Hugh Tomlinson QC, Dan Squires (instructed by Birnberg Peirce & Partners) for the appellants; Jonathan Swift, Sir Michael Wood, Andrew O’Connor (instructed by Treasury Solicitor) for the respondent.