An anonymity order sought by lawyers for two men involved in separate claims relating to the so-called “right to be forgotten” would “disable meaningful reporting of the proceedings”, a judge has warned.
Lawyers for the claimants had sought an order under section 11 of the Contempt of Court Act 1981.
The restrictions would not only have stopped the media publishing the men’s names and addresses, but also details of their convictions; of any third-party publications listed in Google search results; of former and current business interests and activities; the names and locations of any companies with which they were or had been associated; and of any websites with which either man might be associated.
The judge made an order to “hold the ring” but adjourned the application so that the media could be properly notified of it.
Mr Justice Nicklin said it was clear from the Supreme Court’s decision in A v BBC (2015) that the requirements of section 12 (2) of the Human Rights Act 1998 – which say a court must not make orders restricting reporting unless affected media organisations have been notified of an application and given the opportunity to respond – did not apply to the current application for an identification ban because there was no identifiable respondent.
But Lord Reed had also made clear in that case that the media should nevertheless be notified of such applications, the judge said.
“The purpose of giving notice is not a mere formality. It gives the media a meaningful opportunity to consider whether they wish to make objections to the proposed order,” Mr Justice Nicklin went on.
“If an application is made at the commencement of a hearing and without notice, on many occasions no representative of the media will be present in Court and, even if one is, his or her lack of information about the case will usually prevent anything more than submissions at a level of generality that is unlikely to be of assistance or unlikely to advance points that legitimately could be made.
“Lack of notice also deprives the representative of the opportunity to seek legal advice on the proposed order and whether there are grounds upon which to object.
“Reporting restrictions are frequently sought by one party, and (like this case) not opposed by the other. That leads to a risk that inadequate consideration will be given to whether (and if so in what terms) reporting restrictions should be imposed.”
The order proposed by lawyers for the two men “was not workable because it would practically disable meaningful reporting of the proceedings”, Mr Justice Nicklin said.
“The trial will necessarily (and inevitably) consider the details and circumstances of each claimant’s conviction and the subsequent reporting of it.
“Reporting that information – which would be essential to an understanding of the issues that arise in the case – seems to me to carry an obvious risk that the claimants or either of them might be identified.
“A proper balancing of the competing rights might lead to the conclusion that only a more limited restriction could be justified as strictly necessary.”
Hugh Tomlinson QC, for the claimants, had submitted that the media were well-used to deciding what could be reported in a trial without risking identifying a person whose identity was protected, the judge said.
“That may be so in straightforward cases of blackmail and sexual offences where the claimant is anonymised. It will be an unusual case in these categories for a recitation of the core facts to risk identifying the complainant,” he went on.
“Here reporting the central factual issues may very well risk identifying the claimants to at least some people.”
Mr Justice Nicklin said: “The likely effect of such an order will be to chill or inhibit reporting of the case because a publisher is likely to err on the side of caution on pain on prosecution for contempt if s/he misjudges the position,”
The structure of the Contempt of Court Act gave a “clear indication” of the importance attached to court reporting.
Under normal circumstances, a journalist could safely report anything in the proceedings without risk of committing contempt, the judge said, adding that if restrictions were to be imposed on reporting, it was for the Court to decide what must not be reported.
Orders under section 11 “should make clear what cannot be reported”, he said, adding: “In all but straightforward cases, the terms of that restriction must be clear enough to ensure that the burden is not being transferred to the publisher to decide what of the proceedings can or cannot be reported.”
He added: “The reporting of this case presents challenges in striking the correct balance between open justice and the need to ensure that the court process itself does not destroy what the claimants are seeking to protect.”