Factual and Procedural Background
This opinion concerns the Pre-Trial Review (PTR) of two separate claims brought against Company A by two individual Claimants. Although the Claimants are unconnected, the legal issues raised are substantially similar. The trials will be heard consecutively, with the first trial scheduled to commence on 27 February 2018 and the second on 12 March 2018 before Judge Warby. The central issue at this PTR was whether reporting restrictions should be imposed.
The claims relate to the "right to be forgotten" in the context of Internet search engine results, specifically those provided by Company A. The Claimants, both previously convicted of criminal offences but now rehabilitated under the Rehabilitation of Offenders Act 1974, complain that Company A continues to return search results linking to information about their convictions. Some of these links include newspaper articles reporting the original criminal proceedings.
Earlier in the proceedings, an anonymisation order protecting the identities of both Claimants was made and continues to apply. Most prior hearings were held in private, but this PTR was held in public. The Claimants seek reporting restrictions under section 11 of the Contempt of Court Act 1981 to prevent publication of information that might identify them, including details of their convictions and associated links.
Legal Issues Presented
- Whether reporting restrictions should be imposed to protect the Claimants' anonymity and the information they seek to have "forgotten" under data protection laws.
- The scope and appropriateness of such reporting restrictions in light of the principle of open justice and the competing right to freedom of expression.
- The procedural requirements for granting reporting restrictions, including notification to the media under section 12 of the Human Rights Act 1998.
- The practical and legal challenges in balancing the Claimants' right to privacy against the public interest and freedom of expression in reporting court proceedings.
Arguments of the Parties
Claimants' Arguments
- The Claimants assert a right to have links to information about their convictions removed from Company A’s search results, relying on the "right to be forgotten" as established by data protection laws and the European Court of Justice in the Google Spain case.
- They argue that without reporting restrictions, publicity of the proceedings would undermine the very privacy protection they seek by re-publishing the information they want removed.
- The Claimants seek broad reporting restrictions prohibiting publication of their names, addresses, convictions, and related information, including third-party publications linked by Company A.
Defendant's Arguments
- The Defendant does not oppose the making of reporting restrictions but offers limited engagement, noting that the draft orders represent a substantial derogation from open justice and that the court must determine necessity.
- The Defendant’s skeleton argument lacks detailed submissions on the terms or justification of the reporting restrictions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Google Spain SL v Agencia Espanol de Proteccion de Datos (Case C-131/12) [2014] QB 1022 |
Established the "right to be forgotten" under EU data protection law, balancing privacy rights against public interest in information availability. |
Used to frame the legal context of the Claimants' right to have certain search results removed as stale or unjustified information. |
| A v BBC [2015] AC 588 |
Clarified that s.12(2) Human Rights Act 1998 does not apply to reporting restriction orders made contra mundum (against the world), and emphasized fairness through the ability to recall orders. |
Guided the court’s approach to notification requirements and fairness in granting reporting restrictions without prior media notification. |
| Practice Guidance: Interim Non-Disclosure Orders [2012] WLR 1003 |
Sets out principles for making anonymity and reporting restriction orders, emphasizing strict necessity, justification, and ongoing review. |
Informed the court’s approach to the necessity and review of reporting restrictions and anonymity orders in these proceedings. |
| Practice Direction (Fam Div: Applications for Reporting Restriction Orders) [2005] 2 FLR 120 |
Provides procedural guidance on notification to the media and the use of services like CopyDirect for reporting restriction applications. |
Referenced in discussing the practicalities and expectations for media notification in reporting restriction applications. |
| Mackay and BBC Scotland v United Kingdom (2011) 53 EHRR 19 |
Article 13 of the European Convention on Human Rights requires effective remedies for violations of freedom of expression rights. |
Supported the court’s view that media must have the ability to seek recall of reporting restriction orders promptly. |
Court's Reasoning and Analysis
The court began by explaining the legal framework governing the "right to be forgotten," focusing on the interaction between data protection laws, the European Court of Justice’s ruling in Google Spain, and domestic law including the Rehabilitation of Offenders Act 1974. The court acknowledged the tension between the Claimants' privacy rights and the public interest in freedom of expression and open justice.
The court emphasized the importance of open justice but recognized the legitimate interest in protecting the Claimants’ anonymity to prevent the undermining of their claims. It stressed that reporting restrictions must be strictly necessary, justified, and kept under review.
Regarding procedural fairness, the court noted that no formal application notice had been served on the media, which is generally expected to provide an opportunity for representations before orders affecting freedom of expression are made. Although the Supreme Court in A v BBC held that s.12(2) Human Rights Act 1998 does not apply to contra mundum orders, the court agreed with Lord Reed’s reasoning that media notification remains important for fairness and practical reasons.
The court found the Defendant’s limited engagement on the issue insufficient and highlighted the need for more detailed submissions and cooperation to ensure the proper framing of any reporting restrictions. The court also identified practical difficulties in drafting an order that would preserve anonymity without unduly chilling reporting or transferring the burden to the media to guess what may identify the Claimants.
Consequently, the court adjourned the application for reporting restrictions to allow for media notification and further consideration of the scope and terms of the restrictions. In the interim, the court made a limited s.11 order to maintain the Claimants’ anonymity without imposing wider restrictions.
Holding and Implications
The court ADJOURNED the application for reporting restrictions under section 11 of the Contempt of Court Act 1981 to enable proper notification of the media and to allow the parties to make more detailed submissions on the appropriate terms of any order.
In the interim, the court granted a limited reporting restriction order preserving the Claimants’ anonymity but declined to impose broader restrictions until the matter could be more fully considered.
This decision ensures procedural fairness by requiring media notification and careful balancing of competing rights. It does not establish new precedent but underscores the importance of clear, narrowly tailored reporting restrictions that respect open justice while protecting privacy rights in "right to be forgotten" cases.