JIH v News Group Newspapers Ltd (No. 2)

An interference with private life under Article 8 does not automatically justify an injunction or anonymity order. The court must determine whether further relief is necessary and proportionate, having regard to the nature, extent and seriousness of the disclosure, the risk of further publication, and the public interest in open justice. Limited disclosure at a high level of generality may not justify anonymity, even where identification would enable readers to connect the claimant with the disclosed information. Open justice may therefore justify identifying a claimant despite a resulting curtailment of private and family life rights. Publishers must also observe court orders and the duties and responsibilities associated with freedom of expression.

The claimant had previously obtained an order restraining publication of information concerning the proceedings, but his application for anonymity had been refused. His identity was not to be disclosed pending renewal of an application for permission to appeal. After two newspapers published reports which allegedly disclosed limited information about the proceedings, the claimant applied to vary the order and obtain anonymity.

The court accepted, for the purpose of the application, that the publications interfered with the claimant’s private life. The central issue was whether the subsequent publications made anonymity necessary and proportionate in order to protect the claimant and his family.

1. Application refused. The court declined to vary the order to prevent disclosure of the claimant’s identity.
2. Assuming that the two publications disclosed information about the subject matter of the action and interfered with private life, that interference did not automatically require an injunction or anonymity order. The court had to assess whether further relief was necessary and proportionate to protect the Article 8 rights engaged.
3. The risk of republication was reduced by the public-domain proviso in the order, the potential consequences of republication in breach of the order, and the prompt removal of the publications. The published information was limited, expressed at a high level of generality, and did not include the confidential information. The provision restraining publication of the subject matter would consequently continue to limit the risk of jigsaw disclosure.
4. The court accepted that identifying the claimant would enable readers of the earlier publications to connect him with the subject matter of the proceedings. Nevertheless, the resulting interference ranked low on the scale of possible interferences. The general principle of open justice supplied sufficient public interest in publication of a report identifying the claimant to justify the limited curtailment of the private and family life rights of the claimant and his family.
5. The court clarified that its earlier reasoning had endorsed a consent order. It had not decided an adversarial issue between publication of the subject matter and identification of the claimant.
6. Publishers and editors were reminded that Article 10 rights carry duties and responsibilities, including compliance with court orders and taking necessary steps to ensure that journalists understand those obligations.

The judgment concerned an application to vary an order made in the same proceedings following the court’s earlier judgment, [2010] EWHC 2818 (QB). The claimant’s identity remained protected pending renewal of an application for permission to appeal, but no appellate decision was stated.