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Privacy

The majority held that Mr Khuja could have no reasonable expectation of privacy in respect of Wills_A (2)the matters whose publication he sought to prevent because they were discussed at a public trial [34(1)]. Lord Sumption framed this a proposition of general application, noting that “there is no reasonable expectation of privacy in relation to proceedings in open court” [34(3)].

Having reached that conclusion, the majority assessed that the only claim available to Mr Khuja was based on the adverse impact on his family life which would follow from the damage to his reputation [34(3)]. While recognising the collateral impact that the publication would have on his relations with his family and on their relations with the community, Lord Sumption considered that this was a price to be paid for open justice and the freedom of the press to report on court proceedings [34(2)].

The majority held that there is a public interest in reporting on the processes by which cases such cases are investigated are brought to trial and on the use of s.4(2) orders [34(4)]. Invoking Lord Rodger’s “what’s-in-the-name” dicta from Re Guardian News and Media, Lord Sumption considered that the public interest extended to reporting Mr Khuja’s identity, which was not peripheral or irrelevant [34(5)].

Lords Kerr and Wilson had no difficulty in accepting that Mr Khuja had a reasonable expectation of privacy in respect of the information disclosed in open court and they proceeded to conduct the ultimate balancing exercise (as it applies at the interim relief stage). Their Lordships accepted that the naming of Mr Khuja in the criminal trial created a “powerful extra dimension to the public interest in the proposed publications” and that there was merit in The Times’ argument that naming Mr Khuja would make the proposed article more engaging and meaningful [57] – [58]. Ultimately, however, they considered that the “scales descended heavily in favour of [Mr Khuja’s] under article 8” on the basis that:

“[H]is identification would generate a widespread belief not only that he was guilty of crimes … but also that he had so far evaded punishment for them; and then, in consequence, to balance the risk of profound harm to the reputational, social, emotional and even physical aspects of his private and family life, notwithstanding that he is presumed by the law to be innocent and has had no opportunity to address in public the offences of which at one time the police suspected him to be guilty” [58].

Comment

This was an ambitious appeal and its outcome is unsurprising given the weight carried by the open justice principle in English law. The majority’s judgment is a robust reassertion of the pre-eminence of that principle. Equally, the powerful dissenting judgment of Lords Kerr and Wilson is illustrative of growing disquiet about the privacy rights of individuals arrested/investigated but not charged with criminal offences.

Although this case focussed on the interaction between the right to privacy in the fact of an arrest/investigation and open justice in a criminal trial, it has broader resonance for asserting privacy rights in respect of information revealed in open court in any proceedings.

Khuja is unlikely to have significant implications for the evolving (and unsettled) application of the law of privacy to arrests /police investigations. This has been the subject of recent case law (including ERY v Associated Newspapers [2016] EWHC 2760 (QB) and ZXC v Bloomberg [2017] EWHC 328 (QB)) and non-judicial consideration (e.g., the Henriques Review and the College of Policing Guidance on Relationships with the Media). The open justice considerations at play in Khuja mean that it is readily distinguishable from the reporting of arrests and investigations which have not been ventilated in open court. On any analysis, the countervailing article 10 rights are greater when such facts are disclosed in open court. It is notable that the respondents accepted at first instance [68] that, prior to its being mentioned at trial, the information whose publication Mr Khuja sought to injunct was private.

It is unclear whether the majority intended to lay down a general proposition that there can be no reasonable expectation of privacy in relation to information revealed in open court. Having made this statement, Lord Sumption went on to accept that there may be circumstances in which a privacy injunction could be granted in relation to such matters. His Lordship indicated that this might be the case “where the information was private” (which seems to be irreconcilable with his broader proposition that privacy is lost when information is revealed in open court) or where there was “no sufficiently substantial public interest in publication” [34(4)]. Lord Sumption’s judgment also omits any reference to the law of privacy when referring to the limitations applicable to reporting on judicial proceedings [34(5)].

Any such presumption would be a cause for serious concern as it would provide carte blanche for the reporting on private information solely on the basis that a party or witness had revealed it in open court. When reporting on private information revealed in open court, the nature and purpose of the intrusion may be the furtherance of the open justice principle – militating against there being a reasonable expectation of privacy. Yet this is just one of the non-exhaustive list of factors set out in Murray v Big Pictures [2008] EWCA 446 relevant to whether a person has a reasonable expectation of privacy.

Further consideration might have been given to the protection-from-intrusion aspect of privacy. As was reaffirmed in PJS v NGN [2016] UKSC 16, the protection of law of privacy is not contingent upon the information being confidential/not having been made available to the public. Protection extends to the intrusion into a subject’s private and family life likely to result from the (re)publication of (private) information. The intrusion associated with the (re)publication to the wider public of information revealed to a small number of people in open court is likely to be qualitatively different. This would seem to be a highly relevant consideration in such cases.

The open justice principle is undoubtedly of profound importance to the public’s and the media’s art 10 rights, parties’ art 6 rights (and conceivably their art 5 and 7 rights), as well as to the administration of justice and state accountability more broadly. It must therefore be a significant consideration when undertaking the ultimate balancing exercise in a privacy claim. Open justice may, however, be too easily (and uncritically) accepted as trumping article 8 rights without sufficient regard to factors such as: the nature of the information concerned; the reasons for which it was revealed in open court; and the extent to which reporting that information would advance the underlying rationale of the open justice principle. Arguably, there is a need for a more nuanced approach, taking account of such considerations and weighing these against the subject’s art 8 rights. Due deference to editorial discretion/judgement could be accommodated within such an analysis.

Finally, Lord Sumption indicated that Mr Khuja may have been better served by making an application for anonymity at/before trial to prevent his being identified in open court in the first place [34(1)] and [35]. It may have been easier to justify such restrictions than a derogation from the open justice principle [35]. Assuming that such an order could have been properly granted, it could have been fortified by a s 11 order. Yet, this too would have been open to challenge (as occurred – unsuccessfully – in A v BBC) and it is far from clear that the result would have been any different. The scope for and means by which third parties can obtain anonymity in criminal and civil proceedings merits further consideration.

Please see Part One here.

This article was originally posted on Inforrm.