Cookies on Pinsent Masons website

Our website uses cookies and similar technologies to allow us to promote our services and enhance your browsing experience. If you continue to use our website you agree to our use of cookies.

To understand more about how we use cookies, or for information on how to change your cookie settings, please see our Cookie Policy.

High Court strips injunction celebrity of anonymity

The High Court has ordered the identity of a celebrity to be revealed, though it has ordered that information about his private life must remain secret. The celebrity, known in the case as JIH, will be named if an appeal fails.08 Nov 2010

JIH requested that the nature of newspaper revelations and his identity should both be kept secret after News Group Newspapers (NGN) titles The Sun and News of the World published stories about him earlier this year.

But the High Court has ruled that keeping both pieces of information secret is incompatible with the principles of open justice and has ordered him to be stripped of his anonymity.

An injunction was imposed on NGN in August this year restricting the publication of both the information and JIH's identity, but Mr Justice Tugendhat has now ruled that this interferes too much with the principles of open justice.

The man and the newspaper group had reached an agreement not to publish any of the information, but the High Court still scrutinised the case.

The judge agreed with submissions made to him that a court should prevent publication of either information or the identity of the person connected to that information.

"If it is right, as in my judgment it is, that anonymisation and withholding of information about the subject matter of the action are alternative forms of protection for a claimant, then in the present case the agreement reached between the parties contains a derogation from open justice which requires particularly close scrutiny," he said. "The fact that the claimant has agreed to this form of order is not surprising. It is more surprising that NGN should have agreed to it."

Mr Justice Tugendhat said that he would make his own decision regardless of the agreements made between the newspapers and the celebrity.

"An order for anonymity and reporting restrictions cannot be made simply because the parties consent: parties cannot waive the rights of the public," he said.

Mr Justice Tugendhat said that this case, which balanced European Convention on Human Rights guarantees of privacy for individuals and free expression for newspapers, could not be decided privately by people or companies whose motives were opaque.

"I attach little weight to [the agreement not to publish]," he said. "The court has not been given (and would not expect to be given) any information as to any agreement or arrangement that may have been made between NGN and [JIH]. It is open to the parties to settle litigation such this in consideration of an agreement for the publication of other information, or of other matters entirely unrelated to the subject matter of the action."

"There may be an incentive upon a news publisher to agree that a claimant should enjoy anonymity in consideration of some other benefit the claimant may be able to give to the news publisher. It is not to be assumed that news publishers are always concerned to protect the Art 10 [Convention] rights [to freedom of expression] of the public and their competitors. I do not suggest that in this case there has been such a bargain at the expense of the public. I simply decline to attach weight to NGN's agreement to the form of consent order, in circumstances where there is no evidence as to why it has been agreed in that form," said the judge.

Mr Justice Tugendhat recognised that the more common of the two pieces of information to be allowed to be made public is that related to a person's conduct, rather than their identity.

"[JIH's lawyer] submits that in most cases it is the first of the two alternatives he mentioned in paragraph 8 above will be the appropriate one, namely that the court should disclose the kind or nature of the information in question in the action, without naming the claimant," he said. "But in some cases even that is not possible: the information about a claimant which is in the public domain, whether before or after an interim injunction is granted, may be such that the publication of any information at all about the subject matter of the action will in practice reveal to the public the facts of any relationship in question. In those cases the court should, as in the draft consent order, disclose no information at all about the subject matter of the action."

He said that in this case this would not be possible, though, because elements of the story have already been published and the person involved would be immediately identifiable from publication of the rest of the story.

"In the present case it would not be possible to make an order or give a judgment which disclosed any information about the subject matter of the action which did not thereby make it likely that [JIH] would be identified," he said. "To identify both the subject matter and [JIH] would defeat the purpose of the proceedings. Accordingly, the only practical question open to the Court is whether to withhold the identity of [JIH], in addition to withholding all information about the subject matter of the action."

"I remind myself that where the proposed justification for anonymity is that identification would prevent the attainment of justice, the test that the Claimant has to satisfy is that of strict necessity." he said. "[JIH] has not shown to that high standard that the object of achieving justice in this case would be rendered doubtful if the anonymity order were not made."

"It is not possible to do perfect justice to all parties and to the public at the same time," ruled Mr Justice Tugendhat. "In my judgment the proposed order will be effective to achieve justice, and will give all necessary protection the private lives of [JIH] and any others concerned, if it identifies [JIH], but gives information about the subject matter only in the Confidential Schedule."

The Court's order will be sent to newspapers, who will know from the confidential parts of it what they can and what they cannot publish, the judge said. He recognised that this will not stop gossip about the behaviour of the celebrity, but said that stopping that is impossible so should not be the Court's aim.

"Nothing will stop people from speculating in private. And the court cannot stop much of the speculation that takes place on the internet," he said. "But an Order will limit the extent to which the private lives of [JIH] and others are interfered with notwithstanding that it identifies [him]. So the general principle of open justice provides, in this case, sufficient general, public interest in publishing a report of proceedings which identifies [JIH] to justify any resulting curtailment of the rights of [JIH] and his family to respect for their private and family life."

The Court said that JIH will remain anonymous until a decision is made whether he will appeal the order. If he does not then his name will be published in the court order.

Injunctions invoking celebrities' rights to privacy under the Convention have become increasingly common. Some are so-called 'super injunctions' which prevent newspapers from even reporting the existence of the injunction.

Footballer John Terry's reported romance with an ex-team mate's ex-girlfriend hit the headlines last year when a 'super injunction' against reporting on the issue was lifted. A judicial committee was established in April to look into the use of super injunctions and whether they suppress free speech rights.