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Keep it in the family (court): privacy and the public interest

Since the family courts allowed press access to most hearings back in 2009, judges have frequently had to decide what is more important in a given case, the public’s right to know what is going on in court and individuals’ right to privacy. Following an initial flurry of excitement when the new rules came in, the media soon realised that most family court hearings are unremarkable and unlikely to generate anything newsworthy. For the vast majority of litigants, the changes made almost a decade ago have made no difference. However, there is a small but significant group of cases in which the press do wish to report what has taken place in court.

Celebrity cases seem to arouse the greatest media interest. Even before the new rules came in, a judge allowed the full publication of the financial judgement following Sir Paul McCartney’s divorce from Heather Mills on the grounds that details of the dispute were already in the public domain. In 2015 a judge took a slightly different approach to the details of Nicole Appleton and Liam Gallagher’s divorce and allowed publication of the fact that they were engaged in litigation but not the details of the dispute.

Each case is different but every time reporting restrictions are debated, the judge must consider whether press freedom and the public interest in open justice should be prioritised over individual privacy. An early example of privacy concerns failing to win the day was when Earl Spencer and his ex-wife were denied a blanket ban on media attendance at the final hearing of their financial proceedings. They settled before the hearing rather than expose themselves to the full glare of media attention.

Cases involving business heavyweights are perhaps less sensational but nevertheless engage some really important issues. In addition to concerns about privacy, there can be real concerns about the potential economic damage of revealing the inner workings of a business that would normally remain private.

Just recently the law reports have carried an anonymised version of a judgement about a divorcing couple reportedly worth around £520m. We are told that they are not public figures but that the husband’s products are “widely used by millions of people across the world”. The couple’s son suffers from a rare genetic condition so both parties were keen to prevent his identification, given the implications for him of others knowing details of his situation. In the internet age, simple anonymization is often not good enough to prevent so-called “jigsaw identification” where seemingly unconnected facts are, with the help of search engines, enough to work out which family the court is referring to.

In this case, lawyers for the press argued that because of the husband’s high-profile business activities and the fact that he has “made his money out of members of the public”, there is a “public interest in his financial affairs”. Accordingly, they said, he and his wife should be named. At the other extreme, the husband argued that no amount of redaction could prevent jigsaw identification and the case should not be published, even though it contained some really important legal principles that are likely to impact on future cases. The wife was neutral on this point but agreed that there should be reporting restrictions and that any published version of the judgement should be heavily redacted.

There is precedent for a judge banning all reporting of a case because it is “incapable of camouflage” as its facts are so unusual. It is not difficult to imagine a unique business model or family situation that would leave children and families a few keystrokes away from exposure.

In this case, the judge did not agree the case fell into the “exceptional category” of cases that are “incapable of camouflage” and allowed publication of a very heavily redacted version of his judgement. When you read the judgement it is striking how much has been left out without compromising the reader’s understanding of what has been decided and how. This is yet another way of performing that difficult balancing act between privacy and open justice.

As online material, particularly social media, continues to proliferate, the battle to protect the privacy of individuals, especially children, without undermining the fundamentally important goal of ensuring open justice where possible is only going to get tougher. Could this lead to increasing numbers of wealthy and/or high-profile individuals accessing non-court dispute resolution options such as arbitration,, early neutral evaluation and private FDRs . echnology is fast transforming every aspect of our lives and state institutions and the family court finds itself absolutely at the cutting edge of this process.

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