England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 January 2018

The Honourable Mr Justice Nicklin :

1. This is the Pre-Trial Review of two claims brought against Google. The two Claimants (in separate claims) are unconnected, but the legal issues raised in the claims are substantially (if not wholly) the same. As a result, although they will be tried separately, the trials have been fixed to be heard consecutively. The trial of the claim brought by NT1 will commence on Tuesday 27 February 2018 and that of NT2 will commence on Monday 12 March 2018. The trial Judge is expected to be Warby J.
2. The principal issue I have to determine at this PTR is whether (and if so, what) reporting restrictions should be made. Earlier in the proceedings, an order anonymising both Claimants was made. That order continues to apply. I understand that all but one of the previous hearings have be held in private. This hearing has taken place in public. To understand why any reporting restrictions might be necessary, I need to explain the nature of the claims.
3. Both claims concern what is called "the right to be forgotten". As is well-known, searches of the Internet can be made by search engines. Google provides such a search engine. When a person's name is entered, the search will return potentially relevant information relating to that person. Links are provided to the location of the information. The searcher can, via those links, visit the pages that have been identified as potentially containing information about or reference to the person whose name was searched.
4. The return of information in response to an inquiry of a search engine, potentially engages data protection laws. In these cases, Google accepts that when it provides results to a search against a person's name, it is a "data controller" and therefore subject to the relevant data protection laws. In the European Union, data protection laws are harmonised. The principle is that every EU state will must have substantially the same laws that apply to data protection. In the England & Wales, currently the principal source of data protection law is the Data Protection Act 1998. A new Regulation, the General Data Protection Regulation, will come into force across the EU (including the UK) on 25 May 2018.
5. As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 - has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a "right to be forgotten". Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations. The Court explained:

[80] It must be pointed out at the outset that, as has been found in paragraphs 36 to 38 of the present judgment, processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual's name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous (see, to this effect, Joined Cases C-509/09 and C-161/10 eDate Advertising and Others EU:C:2011:685, paragraph 45).

[81] In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject's fundamental rights... Whilst it is true that the data subject's rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject's private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.

6. This "right to be forgotten" is not a new concept introduced under data protection laws. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person's previous convictions are regarded as having been "spent". The underlying rationale is that, for all but the most serious offences, people should not have a lifelong "blot" on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, as I say, the principle of a "right to be forgotten" was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.
7. The Internet provides a challenge to the "right to be forgotten". There is the very real prospect that an individual may end up with a permanent blot on their record if information about them from many years ago is returned as a result of the use of search engines. The Google Spain case established that such an individual has a right, under data protection laws, effectively to have certain search results removed if the information is stale and there is insufficient justification for it to continue to be made available.
8. This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the 'public record', most frequently as a result of newspaper reports of cases that appear in the Courts. Those opposed to the "right to be forgotten" contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.
9. This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.
10. The Claimants in the two cases before the Court are both individuals (neither is a 'celebrity' or politician) who have previously been convicted of criminal offences, but both have now been "rehabilitated" under the Rehabilitation of Offenders Act 1974. NT1 was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, NT2 was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.
11. These two claims will be the first cases in England & Wales in which the right to be forgotten will be considered by the Court.
12. The very important principle of open justice applies to all cases that come before the courts, but there is likely to be a substantial and obviously legitimate interest in these two cases because they are novel and because of the issues that are raised.
13. The reason that reporting restrictions are sought by the Claimants in this case is that, if they were named (or otherwise identified), reports of this case would lead to the publication again of the very information which they argue should be allowed to be "forgotten". In other words, without reporting restrictions, the Claimants would destroy by the legal proceedings that which they are seeking by those proceedings to protect.
14. The relevant principles of open justice are clearly set out in the Practice Guidance: Interim Non-Disclosure Orders [2012] WLR 1003 [9]-[15], and apply equally to the making of reporting restrictions and anonymity orders. Such orders must be strictly necessary and clearly justified. They should also always be kept under review. For example, if a claimant fails in his claim to prevent publication of information the Court may decide that orders for anonymity and/or reporting restrictions that had made in the proceedings should be lifted. If reporting restrictions are made in these two cases, then the trial Judge will review them to ensure that they continue to be justified and appropriate. An application to the Court to lift or vary reporting restrictions can be made at any time.
15. In some cases, the only way in which the Court can preserve the information that is sought to be protected, pending the Court's decision as to whether it should be, is by holding the hearing in private and by excluding the public and media from the whole or part of the proceedings. The Court strives to avoid that. It is a measure of last resort because it prevents the public and press from being able to see and report on those proceedings that are held in private. Even when cases are heard in private, the Court will - wherever possible - give a public judgment, in suitable terms, that enables an explanation to be given as to the nature of the proceedings, what has been decided and why but without destroying that which the claimant is trying to protect.
16. The Claimants in these two cases today apply for reporting restrictions under s.11 Contempt of Court Act 1981. s.11 of the Contempt of Court Act 1981 provides:

"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it is withheld."

17. No Application Notice has been issued. No notice was given to the media or any other third party. A draft of the order that is sought by each Claimant was enclosed with a letter from their solicitors to the Defendant's solicitors dated 16 January 2018.

"Pursuant to section 11 of the Contempt of Court Act 1981, until any further order as may be made after the Trial of this action the publication of the Claimant's name or any other matter in connection with these proceedings that might lead to the Claimant's identification is prohibited for the purpose of maintaining the Claimant's anonymity. Without prejudice to the generality of that prohibition, such matters include:

(a) The Claimant's current address and any former address;

(b) The Claimant's current place of residence or any former place of residence;

(c) The Claimant's conviction;

(d) The nature of the Claimant's conviction;

(e) The third-party publications linked to by the Defendant's search engine in respect of which its liability is in issue in this action;

(f) The Claimant's current and former business interests and activities;

(g) The name of any company currently or formerly associated with the Claimant;

(h) The location of any company currently or formerly associated with the Claimant;

(i) Any website allegedly of or associated with the Claimant;

(j) The Claimant's mental or physical health or wellbeing at any time."

Sub-paragraph (j) relating to the Claimant's mental or physical health or wellbeing is not sought by NT2 as part of the reporting restriction sought.

18. The Defendant's position on the application for reporting restrictions is that is does not oppose the making of an order. All that is said in the skeleton argument is: "The draft orders represent potentially a substantial derogation from open justice and as such it is a matter for the court to determine whether it is necessary to grant them."
19. I think the Court is entitled to expect a more meaningful engagement than that from one of the parties. CPR Part 1.3 requires parties to "help the court to further the overriding objective". The Defendant's legal team have two valuable contributions to make. First, they will be very familiar with the law in this area and therefore to assist the Court as to whether an order can and should be made and, if so, in what terms. s.11 Orders have some serious traps for the unwary or uninitiated and there are important conditions precedent before they can lawfully be made. There are also important limits on what they can and do protect. Second, the Defendant's legal team are in the unique position of knowing how the Defendant's case will be presented at trial. As the judge at the PTR, I can make an educated guess as to the parameters of the evidence and submissions that are likely to feature at trial, but it should not be a matter of guesswork. Here, given that NT1 and NT2 are expected to give evidence at their trials, some thought is going to be have to be given to the mechanics of doing so if there is to be an order in place withholding their names from being referred to in open court. The scope of the evidence that will be presented in open court will also require careful consideration.
20. Section 12 Human Rights Act 1998 provides:

(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed…

(5) In this section—

"court" includes a tribunal; and

"relief" includes any remedy or order (other than in criminal proceedings).

21. An application for reporting restrictions is seeking "relief which, if granted might affect the exercise of the Convention right to freedom of expression"; the order would prohibit the publication of certain information about the proceedings which, without an order, could otherwise be reported. If granted, the order applies to anyone (or contra mundum).
22. It is clear from the Supreme Court decision in A –v- BBC [2015] AC 588 that the absence of an identifiable respondent in reporting restriction cases means that the requirements of s.12(2) do not apply to those cases. Lord Reed said this:

[66] When an application is made to the court to allow a name or matter to be withheld, that is not an application for relief made against any person: no remedy or order is sought against any respondent. If ancillary directions under section 11 are also sought, prohibiting any publication of the name or matter in question, that equally is not an application for relief made against any respondent: the directions will operate on a blanket basis. In such circumstances there is no respondent who should be notified, or who might be present or represented at the hearing. There is therefore no obligation under section 12(2) of the Human Rights Act to allow the media an opportunity to be heard before such an order can be granted.

[67] The Lord President (Gill) observed 2013 SC 533, para 39 that, even if the media were not entitled to be heard by virtue of section 12(2) of the Human Rights Act , they were entitled to be heard as a matter of fairness, although there was a question as to the stage at which the opportunity to be heard should be given. I agree. There are many situations in which courts make orders without having heard the persons who may be affected by them, usually because it is impractical, for one reason or another, to afford a hearing to those persons in advance of the making of the order. In such circumstances, fairness is secured by enabling any person affected to seek the recall of the order promptly at a hearing inter partes. In principle, an order under section 11 of the 1981 Act falls within the ambit of that approach. It would be impractical to afford a hearing to all those who might be affected by a section 11 order (including bloggers, social media users and internet-based organisations) before such an order was made; but fairness requires that they should be able to seek the recall of the order promptly at a hearing inter partes. Article 13 of the Convention also requires that the media should have an effective remedy for any violation of their article 10 rights. That requirement is capable of being fulfilled, where a section 11 order has been made ex parte, provided its recall can be sought promptly at a hearing at which the media are able to make representations (cf Mackay and BBC Scotland –v- United Kingdom (2011) 53 EHRR 19 , para 32). As the facts of this case demonstrate, the existing procedures in the Court of Session are capable of satisfying those requirements.

23. In the Family Division, where contra mundum reporting restriction orders are sometimes sought to protect children the subject of proceedings, s.12 and the question of notification of applications for orders against the media was addressed in a practice direction issued by the President: Practice Direction (Fam Div: Applications for Reporting Restriction Orders) [2005] 2 FLR 120. Paragraph 3 provided:

[3]     Service of Application on the national news media

Section 12(2) of the Human Rights Act 1998 means that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent, or (b) that there are compelling reasons why the respondent should not be notified.

Service of applications for reporting restriction orders on the national media can now be effected via the Press Association's CopyDirect service, to which national newspapers and broadcasters subscribe as a means of receiving notice of such applications.

The court will bear in mind that legal advisers to the media (i) are used to participating in hearings at very short notice where necessary; and (ii) are able to differentiate between information provided for legal purposes and information for editorial use. Service of applications via the CopyDirect service should henceforth be the norm.

The court retains the power to make without notice orders, but such cases will be exceptional, and an order will always give persons affected liberty to apply to vary or discharge it at short notice.

24. There was some discussion today as to whether the CopyDirect service is only available to be used for Family proceedings and not generally. If a mechanism like this is not readily available, it will be for the parties to decide upon a practical and effective way of notifying the media.
25. Although, for the reasons explained in A –v- BBC, s.12(2) does not apply when an application is made for a contra mundum reporting restriction order, Lord Reed is clearly right that, where possible, the media ought to be notified of such applications.

i) The plain intention of s.12 is to ensure that those whose Convention right of freedom of expression would be affected by the making of the proposed order have an opportunity to make representations to the Court before any order is made. It would be practically impossible to notify everyone who would be affected by the making of a reporting restriction order, but that does not mean that the applicant need not notify anyone. For reasons of practicality, the media can be regarded as a reasonable surrogate who are both likely and able to represent the Article 10 considerations of the public generally in appropriate cases.

ii) The requirement to notify is consistent with the Practice Guidance: Interim Non-Disclosure Orders. Under that guidance, where third parties who the applicant intends should be bound by the order are known to the applicant (and it is intended to serve any order on them), there is an obligation (a) to notify the Court of those upon whom it is intended to serve the order; and (b) to have complied with s.12 in relation to giving notice of the application to them (see Paragraphs 19 to 23, where the importance of service on media organisations is also emphasised).

26. The purpose of giving notice is not a mere formality. It gives the media a meaningful opportunity to consider whether they wish to make objections to the proposed order. If an application is made at the commencement of a hearing and without notice, on many occasions no representative of the media will be present in Court and, even if one is, his or her lack of information about the case will usually prevent anything more than submissions at a level of generality that is unlikely to be of assistance or unlikely to advance points that legitimately could be made. Lack of notice also deprives the representative of the opportunity to seek legal advice on the proposed order and whether there are grounds upon which to object. Reporting restrictions are frequently sought by one party, and (like this case) not opposed by the other. That leads to a risk that inadequate consideration will be given to whether (and if so in what terms) reporting restrictions should be imposed.
27. In these cases, given that the media have not been notified of the application, I have decided that the application for an order under s.11 Contempt of Court Act should be adjourned for a short period to enable notice to be given to the media. Both parties are agreed that this should have happen. I have made a more limited s.11 order to 'hold the ring' in the meantime. The hearing of this PTR has not brought into open court any details that would justify or require the imposition of any wider reporting restrictions in the interim.
28. There is another reason that necessitates an adjournment. As I indicated in argument, the parties are going to need to give more thought to how the trial is to be conducted, what information is to be withheld from proceedings in open court, and the appropriate terms of any s.11 Order. It was my view that the proposed order was not workable because it would practically disable meaningful reporting of the proceedings. The trial will necessarily (and inevitably) consider the details and circumstances of each Claimant's conviction and the subsequent reporting of it. Reporting that information – which would be essential to an understanding of the issues that arise in the case – seems to me to carry an obvious risk that the Claimants or either of them might be identified. A proper balancing of the competing rights might lead to the conclusion that only a more limited restriction could be justified as strictly necessary.
29. Mr Tomlinson QC submitted that the media are well-used to making a judgment as to what can be reported in a trial without risking identifying the person whose identity is protected. That may be so in straightforward cases of blackmail and sexual offences where the claimant is anonymised. It will be an unusual case in these categories for a recitation of the core facts to risk identifying the complainant. Here reporting the central factual issues may very well risk identifying the Claimants to at least some people. The issue is what steps the parties can take in presenting the evidence to reduce that risk and, insofar as that is not possible and the evidence is essential to the case, the options are the making of a reporting restriction order over that piece of evidence or (as a measure of last resort) sitting in private to receive that evidence. I do not think it is right to frame a s.11 Order in a case like this in terms which effectively cast the burden onto the media to decide what will (or might) identify a claimant. The likely effect of such an order will be to chill or inhibit reporting of the case because a publisher is likely to err on the side of caution on pain on prosecution for contempt if s/he misjudges the position.
30. There is a clear indication in the structure of the Contempt of Court Act as to the importance attaching to court reporting. Pre-trial, the strict liability regime under s.2 applies. It is then for the media to decide how to avoid publishing material which "creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." At trial, however, s.4(1) protects fair and accurate reports of legal proceedings held in public. A journalist can safely proceed on the basis that s/he can report anything in the proceedings without risk of any strict liability contempt. If restrictions are to be imposed on that reporting, it is for the Court to decide what is not to be reported and, for example, to make a reporting restriction under s.4(2). It seems to me that the same approach should be adopted for s.11 orders. They should make clear what cannot be reported. In all but straightforward cases, the terms of that restriction must be clear enough to ensure that the burden is not being transferred to the publisher to decide what of the proceedings can or cannot be reported.
31. What order should be made in this case can – and will – be the subject of more careful submissions by the parties when the application returns to Court. The reporting of this case presents challenges in striking the correct balance between open justice and the need to ensure that the Court process itself does not destroy what the Claimants are seeking to protect.