Harry and Meghan: a conflict of rights

Freedom of expression and privacy

 

The latest in the story of Prince Harry and Meghan Markel (the ‘Sussexes’) and their aim to carve out new roles as hybrid royals part prompted by their tribulations of dealing with the British media (for the latest see here). Involvement with the press – and in this context I think mostly of court proceedings – comes in a variety of forms (eg photographs, promoting you own story, protecting your privacy, details of family proceedings etc). It affects ‘celebrities’ disproportionately (though as Naomi Campbell’s case (see below) shows, it can be said they asked for it – mostly). It can affect us all: parents and children in care proceedings; anyone investigated by the police or involved in interesting (to the press) open court proceedings; and even some private proceedings case.

 

English law on press freedom and privacy are derived from the common law, prompted by European Convention 1950 Arts 8 (‘respect for private and family life’: ie privacy) and 10 (freedom of expression: ie publicity). To act for a ‘celebrity’ (silly expression, but convenient short-hand; or ‘figures of contemporary society “par excellence”’ of a Monacan royal family member (see below)) will be rare for most lawyers. However, the balance – the conflict – between privacy and media freedom of expression arises wherever the media take an interest; but an individual affected wants to keep a case private (see discussion in the ‘three way sex’ case: PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251; or the photographing of JK Rowling’s child: Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481).

 

Privacy and the common law

 

A law of privacy was more or less unknown to the common law till the early 21st Century (Kaye v Robertson [1990] EWCA Civ 21) a case which, said Bingham LJ, ‘highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens’. Then, after the incorporation of Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) into English law by Human Rights Act 1998 in October 2000 a trio of cases in 2004 sealed a common law concept of privacy and showed how it might develop on issues of privacy.

 

First was in the House of Lords in Naomi Campbell’s case (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457). The common law began to feel its way towards a concept of privacy. Privacy could be actionably invaded by the media. Campbell recovered modest damages for the privacy invasion by the Daily Mirror.

 

Six weeks later, privacy principles were explored in Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 where the extent of the media’s freedom to interfere in a person’s private life was defined. Publication of photographs of the Monacan royal family member, Von Hannover, and her private life, by an invasive press were not permitted, said the European Court of Justice. The court said:

 

[23] …. even figures of contemporary society ‘par excellence’ were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos….

 

The ‘ultimate balancing test’

 

The lead case on the balance between competing Convention rights followed (and as can be seen, those involved – a parent and child in care proceedings – were by no means (but perhaps for that case) ‘celebrities’. The case was on the cusp between criminal and family proceedings, namely Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. Should the name of a mother who was being prosecuted for murder of her child be anonymised for the sake of S, another child of hers? No, said Lord Steyn. Freedom of expression trumped privacy of the mother.

 

For general application of the Arts 8 and 10 balance (and any other Convention rights in the mix, the test a judge must apply to each case’s facts is, said Lord Steyn, as follows:

 

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

 

And still Lord Steyn’s test is the golden metwand by which Convention rights are determined in a variety of proceedings where rights appear to conflict.

 

Spencer and media involvement in family proceedings

 

Five years after all this, Prince Harry’s uncle (Princess Diana’s brother) found himself being required to conduct his matrimonial financial relief proceedings in front of the media, in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416. The rules for admission of media to family proceedings (now Family Procedure Rules 2010 r 27.11(2)) had recently been changed at the time. Munby J had sympathy with Countess and Earl Spencer, but said that there was nothing exceptional about the facts of their case which could justify him in ordering exclusion of the media. The couple settled the case overnight, so the press had no hearing to report.

 

Royal family members, privacy and publicity on marriage breakdown (any privacy problems of the Sussexes has nothing to do with marriage breakdown) coalesced in Prince of Luxembourg v Princess of Luxembourg [2017] EWHC 3095 (Fam), [2017] 4 WLR 223, [2018] 1 FLR 480 (to provide an abbreviated title to the case). The media had painted Princess Tessy as a gold digger. She wanted to be able to respond to this by explaining the content of her negotiations to settle her financial relief claim. One area of family breakdown which is totally out of bounds for publicity, is court negotiations for settlement; so even to put Tessy’s story right, Macdonald J said the press could not publish the private aspects of the negotiations.

 

Most of these cases refer to people on a different plane of notoriety than most clients; but the principles – say in relation to care proceedings or parties’ difficulties with local authorities or government departments or health authorities – are the same. Where there is an issue on freedom of expression the Re S balance must be examined and struck – one way or the other. Privacy and freedom of expression must be carefully balanced.

Anonymity: private and public proceedings

Open justice principle

 

Anonymity in relation to court proceedings tends to go with privacy (or secrecy) in proceedings, notably in family proceedings. The default position in all proceedings remains open justice, and therefore that names can be publicised. This is the open justice principle whose rationale was clearly asserted (amongst many examples) by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?… In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said… ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

In civil proceedings generally (including all appeals to the Court of Appeal) the general rule is that hearings are in open court (common law (above); CPR 1998 r 39.2(1)). This rule applies to divorce proceedings (FPR 2010 r 7.16(1)), and may apply to certain other family proceedings if the judge prefers to rely on common law rather than to a rule which only partially states it (ie that all family proceedings should be in ‘private’: FPR 2010 r 29.10)).

 

If the court says so, a hearing may be in private. In effect CPR 1998 r 39.2(3) and FPR 2010 r 7.16(3) says the same thing namely, that a hearing may be in private if amongst other factors:

 

(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;… or

(f) the court considers this to be necessary, in the interests of justice.

 

Anonymity and Civil Procedure Rules 1998

 

Thus in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (8 March 2019), Martin Spencer J a claimant who sought damages for psychiatric injury arising out of the stillbirth of her daughter was denied anonymity: none of the exceptions in CPR 1998 r 39.2(3) applied. Anyway, said the judge, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case.

 

By contrast, in XW v XH [2019] EWCA Civ 549 (2 April 2019), the Court of Appeal dealt with a financial relief appeal. The couple’s son had a life-threatening condition. At the conclusion of the trial below the judge had made a reporting restrictions order. He anonymised the names of various people and redacted part of his judgment, saying there was little if any public interest in knowing the family’s identity. The appeal court referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426 (where the wife’s application for anonymity in financial relief appeal proceedings failed) from which it extracted the following:

 

• In a financial remedy appeal, a formal application must be made for restrictions or reporting and for anonymity;
• only exceptionally would an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal: parties were not routinely entitled to anonymity and the preservation of confidentiality in their financial affairs
• parties could not waive the rights of the public by consent: the decision was the court’s, having conducted the balancing exercise in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (and see R v Legal Aid Board exp Kaim Todner[1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA; Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J);
• the Court of Appeal would pay close regard to any anonymity order made by the first instance judge, although such orders were not binding (eg because of the different starting points for the respective courts);
• the interests of a child might render it necessary to restrict public reporting of certain information in financial relief cases, K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA Civ 550, Norman and Re S followed

 

Anonymity and divorce proceedings

 

On the assumption that anonymity is normally denied where a hearing is in open court, two recent divorce cases give pause for thought. Exceptionally for family proceedings, the same open court rules apply to divorce as to all civil proceedings. The foundation case for modern open court principles remains a nullity case – ie now Matrimonial Causes Act 1973 (MCA 1973: ie divorce) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where their lordships seemed astonished to think anyone could have thought the case should be heard in private. In AJ v DM [2019] EWHC 702 (Fam) (6 March 2019), Cohen J considered whether a wife’s divorce petition should be amended. There were other jurisdiction issues; but nothing in his judgement explains why the divorce aspect of the case – albeit that it might be said to be case management – should be anonymised as the rubric to the report says is the case.

 

M v P [2019] EWFC 14 (22 March 2019) was Sir James Munby’s marathon explanation (judgment post Presidential retirement) as to why a decree nisi based on a petition pleaded wrongly (couple married for less than 2 years at time of filing who claimed they had lived apart for two years, amended after decree to MCA 1973 s 1(2)(b) (behaviour)) was voidable. The court he said had power to find the decree absolute voidable – not void (ie in that cases, any remarriage would have been bigamous). The former President heard the case in open court. He allowed unrestricted reporting, but gave anonymity to the parties. At the end of the hearing he said that the reporting restrictions order should be continued indefinitely the parties full anonymity. He comes close to treating this as a matter of discretion (see [115]): ie for him to decide as he saw fit, not according to legal principle; and, for example he made no reference to the common law principles summarised in FPR 2010 r 7.16(3) (above).

 

Appeals: family proceedings

 

Many appeals in family proceedings are to the High Court. These may be in open court (FPR 2010 r 39.12A(2)(a) since December 2018); though the rule does not say in what circumstances. In CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019), Williams J created an unusual precedent (for commentary on the case see ‘Not a vacuum but a low pressure vessel’ (Seusspiciousminds) and ‘CS v SBH: a child’s competence to appoint her own lawyer’ (Transparency Project)). He was to have heard a child law appeal in open court; but because a solicitor who wished to appear as advocate to represent the child did not have higher rights, he decided to switch the appeal to be heard in chambers (see [22]).

 

No clear principle is yet laid down as to when an appeal under r 30.12A should not be in open court, which – after such cases as Norman v Norman (above) – might be thought to be the norm. But to diverge from principle because of the rights of audience accorded to a particular advocate may be thought original. It being a children case no question of anonymity was in issue.

 

FPR 2010 r 30.12A(4) suggests that a practice direction may deal with when a family hearing is to be in open court; but none has yet been made. The rule does not deal with anonymity, save – indirectly – in that secrecy of a hearing is likely to connote anonymity also.

 

Procedure

 

Any claim for anonymity, if not guaranteed by general principle (eg children proceedings, or proceedings concerning a protected party), must be applied for. Application must be well in advance of any trial (Zeromska-Smith (above)). The question of a parties’ anonymity is a discrete issue. In the case of an appeal to the court of appeal application should normally be made in the appellant’s notice (Norman v Norman; XW v XH (above).

 

Where the position under FPR 2010 r 30.12A(2) is as yet so vague, if in doubt an appellant should make application in their notice of appeal; or, if later, by application in FPR 2010 Pt 18.

Privacy: Cliff Richard, bloggers and family courts transparency

Privacy: where now?

 

In Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) Mann J examined the balance of an individual’s privacy, as against the freedom of the media to publicise information which it acquires about that individual. It is another step along the way to affirm the existence of a tort of breach of privacy. And, yes, it was a case in tort; but it has resonance for the family lawyer especially in the context of transparency in family courts and the reporting of family proceedings.

 

Judgment in Richard was on 18 July 2018. A month later it was announced that there was to be a pilot scheme to permit legal bloggers into family courts.  The Transparency Project on 22 August explained this:

 

After months of liaison with the Family Procedure Rules Committee our proposal to permit legal bloggers into family court hearings is going to be piloted. The pilot will launch on 1 October and run for 9 months until 30 June 2019, so it’s no change until October. The pilot will allow practising lawyers, academic lawyers and those under the umbrella of an educational charity (like us) (sic: there was no statement of what was to be allowed)….

 

What is the connection between the case and the pilot scheme proposal? Both concern privacy: the first explains the expectation of privacy which a person enjoys, as against the right – if that privacy is not wrongly (ie tortiously) invaded – of the press to publish information. The second deals with the extent to which interested persons, other than the press, may attend private court hearings and (subject to the restrictions on publication of information about children proceedings: Administration of Justice Act 1960 s 12(1)(a)) to report upon those proceedings (Family Procedure Rules 2010 (FPR 2010) r 27.11(2)).

 

It always was the case that ‘any other person whom the court permits to be present’ (OPs) in proceedings heard in private (ie most family proceedings) could attend court (FPR 2010 r 27.11(2)(g)).. There is a proposed PD36J: Pilot Scheme – Transparency (Attendance at hearings in private); though it has yet to be signed off by the President of the Family Division. It says that the purpose of the new scheme is –

 

…to assess the use of new practices and procedures to allow for attendance at hearings in private by certain lawyers with a view to their being able to report on proceedings (as “legal bloggers”) in addition to duly accredited representatives of news gathering and reporting organisations.

 

A (ff) category is added to those attending private hearings, consisting of ‘duly authorised lawyers’. Each component of this is exhaustively defined. It is not clear what this pilot adds, for those who want to attend court, to what was available for the much wider category of OPs under para (g); and which is there already.

 

A question which remains to be resolved, is to what extent will the court release to OPs and media representatives (r 27.11(2)(f) (MR)) those attending sufficient documents (witness statements, skeleton arguments and other hearings documents: see further Release of family courts hearing documents, ICLR, 11 November 2016) to enable the OP/MR to make sense of proceedings (see eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343). The question has recently been further considered, though not in the context of r 27.11, in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795  (powers of the court under the CPR and its inherent jurisdiction to permit access to documents by non-parties). That case extends the debate but does not answer the difficulties of the OP or MR who wants to understand what is happening in the case.

 

Richard v BBC

 

In the Richard case, unknown to himself, Sir Cliff Richard (CR), the claimant, had become subject to investigation by South Yorkshire Police (SYP) for alleged child abuse. A BBC reporter found out about it. SYP promised him advanced notice of their intended search. When it took place in August 2014 the BBC immediately gave extensive television coverage to it. CR remained under investigation until June 2016 when it was announced there would be no charges.

 

CR claimed that both BBC and SYP violated his rights both in privacy and under the Data Protection Act 1998 (DPA 1998). (Mann J specifically held (at [226]) that the DPA 1998 claim added nothing to the privacy claim. It could be ignored.) He claimed substantial damages because his life and finances have been radically affected by what happened. In May 2017 he reached a settlement with SYP. BBC continued to resist the claim. It came before Mann J in April 2018. Judgment is dated 18 July 2018. BBC was found liable to CR in damages (£230,000) with special damages to be assessed.

 

Mann J defined the privacy issues he must resolve [225] as follows:

 

• Did CR have a legitimate expectation of privacy in relation to the investigation and the search of his property?
• If yes, was BBC justified in publishing information to the investigation by virtue of its rights of freedom of expression?
• If he had rights of privacy, was there an infringement of them by either or both defendants, and (if so) what damages follow (this third component need not be considered here)?

 

Privacy and the law

 

Privacy in law is not an easy subject, where the common law – largely framed by European Convention 1950 jurisprudence – is still feeling its way. Richard may prove to be an important step in its development; though many decisions are fact specific and therefore stand alone. Five of the recent Supreme Court decisions on privacy are:

 

• Rhodes v OPO [2015] UKSC 32, sub nom O (A Child) v Rhodes [2016] AC 219: the concert pianist James Rhodes wanted to publish an autobiography which described graphically what he had suffered as a child. The American mother of Rhodes’s 12 year old son thought what was said, if read by the child, might damage him psychologically. The Supreme Court allowed publication: if what was said was true, was not defamatory and not intended deliberately to injure. Freedom to publish was given a high premium by the law (see [77]). Appeal allowed by all five SCJJ.

 

• Re JR38 [2015] UKSC 42, [2016] AC 1131: the applicant for judicial review was a 14 year old who had been involved in ‘interface violence’ in Northern Ireland. The police wanted to expose his name. Does the fact that he was a child make any difference to his expectation of privacy? The majority held this was an objective test. Child hood is irrelevant. Art 8 was not engaged. Appeal allowed on a majority, 3:2 SCJJ.

 

• R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444: protection of anonymity of mental patient (all five SCJJ agreed).

 

• PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251, [2016] 2 WLR 1253 – three-way sex interim injunction. Privacy allowed to PJS (and for the sake of his children) by four SCJJ over dissent of Lord Toulson.

 

• Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351 – publicity allowed for name of a police suspect (child sex grooming in Oxford area) who was not ultimately charged of the offences investigated. Appeal dismissed on a majority, 3:2 SCJJ.

 

Of the five appellants two secured privacy. C, a mental patient kept his anonymity. PJS, at an interim stage, succeeded also (and his children were an important factor: see Lady Hale at [72]). Of the other three, all either were permitted publicity (James Rhodes, in that case freedom of expression for an individual) or had anonymity denied. Publicity ruled the outcome in each of these three cases. Why did the publicity question go the other way in Richard?

 

Reasonable expectation of privacy

 

Mann J defined the first issue he must deal with as CR’s ‘legitimate expectation of privacy’. This starts from European Convention 1950 Art 8 (right to respect for private life) balanced against Art 10 (freedom of expression): respectively of CR and of BBC. Balancing the rights, where a conflict arises, he said (at [230]), involves the following:

 

• Were CR’s Art 8 rights engaged?
• How were such rights, if engaged, to be balanced against the Art 10 rights of the BBC?
• Was there a public interest in publishing the information that was published?

 

Of Art 8 rights Mann J said there is a no ‘invariable right to privacy’ ([251]); but, that said, the starting point is that a suspect has a reasonable expectation of privacy in relation to a police investigation (at [248]). This question turns on the extent to which, first, people generally understand, and give effect to, the presumption of innocence; and, secondly, that everyone is ‘capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards’. This is rarely the case with most lay people.

 

This took Mann J to Khuja (above). Lord Sumption gave judgment for the majority. He explained that he was not sanguine as to the ability of the public to distinguish suspicion from guilt. He went the other way on the decision to publicise Mr Khuja’s name, largely on open justice principles. Mann J accepted the minority view (Lords Kerr and Wilson) where they quoted Cobb J in Rotherham MBC v M [2016] EWHC 2660 (Fam), [2016] 4 WLR 177 (at [39]; [52] in Khuja): that despite the presumption of innocence, where there are false allegations of serious crime investigation “mud sticks”. The fact of a person being a public figure, like CR, made no difference to their entitlement to an expectation of privacy ([256]; and see eg K v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827 per Ward LJ at [10]; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [2008] 2 FLR 599, [2009] Ch 481 per Brooke LJ at [36]).

 

Nor was the position altered by the nature of who received the information. If information starts out as private it remains so, ‘full stop’:

 

[258] … Sir Cliff’s rights in respect of the information in the hands of the police are not based on a reasonable expectation of privacy as long as the information does not fall into the hands of the media; he has a reasonable expectation of privacy full stop…

 

Art 8 was engaged as against both defendants. But how did BBC’s Art 10 rights balance against CR’s privacy? What of the effect of Human Rights Act 1998 s 12(4) and BBC public interest defence? How did each set of rights weigh one against the other? In assessment of the balance Mann J drew attention to the ‘ultimate balancing test’, defined by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at [17]. No right has priority.

 

Public interest

 

Human Rights Act 1998 s 12(4) requires the court to take into account the public interest in publication of material. He considered this in the light of the factors set out in Axel Springer AG v Germany (2012) 55 EHRR 6, [2012] EMLR 15 (see especially [276]). Assessment of the public interest and its part in drawing the balance depended on the ‘good faith’ of the journalist and on the media providing ‘reliable and precise information’ ([288]).

 

The way BBC came by information about, and then reported, the investigation weighed against them. The public interest in knowing about investigations into sexual abuse did no help them in this case ([317]-[318]).

 

Finally, in defining how the balance fell, Mann J concluded that CR’s privacy rights outweighed BBC’s rights to freedom of expression ([315]); and the first point he identified was the ‘mud sticks’ point (so important, though not determinative, in the Khuja case (see above)). Damages have been partly defined. Special damages, and the extent to which the BBC and SYP may respectively be required to contribute to the damages awards, remain to be determined.

 

Privacy: lawyer bloggers and the family courts

 

On one level the case does no more than confirm that there is an expectation of privacy; and that where that expectation is disregarded by anyone exercising their competing freedom of expression, then damages may follow. That is relatively well-settled law (see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457).

 

What Richards does is to pose the question for the press and for anyone else publicising information – such as family law bloggers, mentioned above – where an expectation of privacy arises: how far does freedom to publish (for individuals and for the media) protect the publisher from a damages claim where privacy is overridden (eg because a child’s name can be identified even though a case is reported with parties anonymised). And for the media, how far does the public interest defence (HRA 1998 s 12(4)) protect them from such a claim?

 

To what extent – just a thought… – should those who publish information (say) from a family court, insure against a claim from a parent, or a child? The privacy of the parent or child may be overridden by unwarranted publicity (eg in law reports or a blog)? Each has an expectation of privacy; and the private or lay observer, the academic or blogger does not have the public interest protection of HRA 1998 s 12(4). Does this leave each or all of them vulnerable to a claim in tort if they in any way infringe the expectation of privacy of the subject matter of what they publish?