Anonymity by Poklong AnadingThe recent decision of the Supreme Court in the case of In Re Guardian News and Media ([2010] UKSC 1; [2010] 2 WLR 325) has been met with almost universal approbation by the media and legal commentators.  For example, one of the applicants, the freedom of expression NGO “Index on Censorship” said  “This is an important decision. For the very first case heard by the Supreme Court to be held under conditions of anonymity would have been a blow to the concepts of a free press and open justice, which should be at the core of the court’s operations.”.  Similar points were made in the press release of another applicant, Article 19.  However, the position is not quite as clear as many commentators have suggested and there is a danger of an unexamined adherence to “openness” unjustifiably intruding into the private lives of litigants.

The decision in the Guardian News and Media case was on an application, made by a number of media organisations and NGOs, on the first day of the Supreme Court’s existence to remove the anonymity orders which had, up to then, been in place. The applicants originally argued that the appellants were required to make a fresh anonymity application before the Court  The appellants’ identities had been protected by anonymity orders in the lower courts, and they were referred to by their initials. The applicants applied to have those orders discharged, to allow them to include the identities of the appellants in their reporting. Before dealing with the main issues in the appeals, the Court, through Lord Rodger, gave a separate, unanimous judgment allowing the press application. 

 Lord Rodger began by noting that it is increasingly common for parties’ identities to be protected: as counsel for the press described it, the Court’s ‘first term docket reads like alphabet soup.’ [1] He emphasised the long-standing principle that judicial proceedings are held in public and the parties are named, even when this meant that nineteenth-century divorce proceedings became ‘popular reading-matter among servants.’ [23]   But in the present day, the effect of the European Convention on Human Rights is that the long-recognised public interest in the full reporting of proceedings (which engages Article 10) must be weighed against a litigant’s right to private and family life (which engages Article 8). The Court adopted the description of the Article 8 / 10 balancing exercise given by Lord Hoffmann in Campbell v MGN Ltd [2004] 2 AC 457, at [55] and [56] (a case brought by Naomi Campbell against a newspaper which had published photographs of her leaving a drug treatment session):

‘when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right.’

That was the balancing exercise which the Court had to carry out.

Formally, being subjected to a freezing order means that the Treasury claims to have reasonable grounds to suspect a person of facilitating terrorism. It does not mean that there is proof that the person has been involved in terrorist activity. Understandably, the appellants feared that this was a distinction which would be lost on members of the public, with damaging consequences for them and their families. It is readily apparent that people are likely to elide suspicion and proof, in this highly charged context, and that even being ‘suspected’ by the government of facilitating terrorism is a serious matter, especially where that suspicion leads to draconian asset-freezing measures. There is an obvious risk that the public would infer that the draconian nature of the measures were proportionate to the level of threat posed by the individual who was subjected to them. 

Lord Rodger thought otherwise:

‘Doubtless, some may indeed draw the unjustified inference that M fears. But the public are by now very familiar with the argument that various measures, including control orders, have been taken against people who are merely suspected of involvement in terrorism, precisely because the authorities cannot prove that they are actually involved.’ [60]

This imputes a level of sophistication to the press and public which may, in many cases, be misplaced. Even if correct, however, one might question the use of the word ‘merely.’ Even the revelation that a person is ‘merely suspected’ of involvement in terrorism – the suspicion being that of the government, which has taken the suspicion seriously enough to freeze the person’s assets – is obviously damaging to the reputation of a person. It may have serious, though difficult to predict, effects on their relationships, employment prospects, and other aspects of their private and family life.

Lord Rodger considered that the appellants’ argument on this point ‘really amounts to saying that the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately.’ [60] In areas where the State has some obligation to protect individuals from interferences with their Convention rights by the actions of private individuals, such as Article 8, it is no answer to say that the actions which constitute those interferences would be wrongful, and that protection is therefore unnecessary. By definition, many violations of Convention rights will be through wrongful acts (by way of serious violence in the Article 2 context, for example). The question for the Court is what impact those acts would have on the individual, not whether the acts would be based on an accurate understanding of the situation.

The appellants also emphasised that, under the Orders, they were unable to challenge the substance of the allegations against them. The allegations would never be brought to trial. They had no power to clear the ‘mere suspicion’ which hung over them. They argued that, in all the circumstances, a full report of the case, simply withholding their names, would strike a fair balance between the rights of the press, and their and their families’ private lives. 

The Court’s rejection of these arguments turned on its view that:

‘A requirement to report [the case] in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive… A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer. On the other hand, if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion about the use of freezing orders and their impact on the communities in which the individuals live. Concealing their identities simply casts a shadow over entire communities.’ [63]-[65]

On this analysis, the ‘sufficient public interest’ required by the Campbell balancing exercise constitutes the fact that readers are more interested in a press report if it contains a name rather than simply an initial. This heightened interest was considered relevant for two reasons: stimulating public debate, and ‘the viability of newspapers and magazines’.

This is a flimsy basis on which to find a public interest when set against the potential damage to the individual. It is also factually questionable: during the period of detention without trial, for example, the press ran interviews with those who had been subjected to it, giving extensive details of the human impact of the policy, but simply withholding the person’s full name. There is an entirely workable middle ground between full, damaging revelation of identity, and the ‘disembodied’ and uninteresting reports envisaged by the Court. 

Lord Rodger also considered that concealing the appellants’ identities

‘runs counter to the entire thrust of [their] case’, which was that the freezing orders were ‘wrongs done to them, rather than … indications that they themselves have done something wrong.’ [67]

This is not quite right. The appellants’ case was that the freezing orders were unlawful, and also that they did not have a proper opportunity to contest their designation. Winning their case, as they did, did not in itself prove that the ‘suspicion’ against them was unjustified. They remain, in the eyes of the public, those whom the government suspects as terrorists, with all the damage that that may do to their lives. 

The Court set aside the anonymity order and named the appellants. It expressly reserved the position in respect of anonymity in control order cases, acknowledging that ‘there may be arguments and considerations in those cases which were not explored at the hearing in this case.’ [78]  However, it seems inevitable that the press will now make such applications in control order cases, with considerable support from the judgment of the Court in this case.

The decision is founded on a public interest in “identification” which “trumped” the Article 8 rights of the appellants.  Such an interest is dubious.  As a matter of practicality the same articles can be written and the same public debates had whether the first appellant was identified as “A” or “Mohammed Jabar Ahmed”.  It is difficult to see how readers’ understanding of the issues will be enhanced by names being added. Second, in contrast the overwhelming majority of readers will have no knowledge of the individuals identified and will gain nothing from knowing who they are. As with any newspaper reports, the names of the appellants will briefly enter the public domain – as still suspected terrorist funders.   Any subsequent decision to remove them from a suspects list would be likely to receive little or no publicity.  The damage is permanent.  This problem is particularly acute in criminal cases where most reports concentrate on two things – the prosecution opening and the facts of the offence if there is a guilty verdict.  The identified party, in practice, suffers permanent and unremedied damage to his or her reputation by the initial publicity, damage which is not substantially repaired by a short paragraph mentioning an acquittal. 

There is an obvious general public interest in knowing the names of those convicted of crime. The public interest in knowing the names of those suspected or accused is much less obvious.   A more consistent approach would involve anonymising all criminal and quasi-criminal proceedings until there is a finding of guilt.   The Supreme Court decision involves an uncritical acceptance of media assertions about the value of “openness” and transparency, which in turn involves riding roughshod over the privacy rights of those accused.

The photograph illustrating this post is from a series called “Anonymity” by Poklong Anading – a series of street portraits from Cubao in Quezon City, Philippines.