It is well established that when considering the imposition of non-automatic reporting restrictions, a Judge must carry out a balancing exercise between an applicant’s Article 8 Right to Privacy, and a publisher’s Article 10 Right to Freedom of Expression.
The Court has the power to grant a witness anonymity, but it should not be done unless there are compelling reasons.
We are all very familiar with the above principles.
However, it is not very often that an application for a Reporting Restrictions Order (RRO) considers Article 2 (Right to Life) and 3 (Prohibition of Torture) of the European Convention on Human Rights (ECHR). So, what effect does that have on the decision-making process?
Re AI M (Reporting Restrictions order)  concerned a case in the Family Court about the welfare of two children. The Applicant for the RRO, who was a witness in the case, applied for the order to prevent them from being identified on the basis that it would create a real risk of harm or death. The Applicant was referred to as “XX”.
In the alternative, XX argued that Article 8 (Right to Privacy) was engaged, and should lead to anonymity being granted.
Many of the details of the case cannot be published as a result of the RRO application being successful. But, the combination of XX’s previous career, coupled with their involvement in this case, and the fact that the children’s father (against whom XX was giving evidence) was held in very high esteem, came together to create a situation where media coverage would enhance “the risk of self-starting terrorist activity against XX by those who are sympathetic to the father”.
The RRO was granted because of the overwhelming risk to XX, should their identity be reported. But there are a few interesting points to take from the case.
There are currently two conflicting legal precedents concerning RRO’s when Article 2 and 3 are engaged, like they were in this case.
One precedent says that because Articles 2 and 3 are unqualified rights, once they have been found to apply there is no need to even consider the media’s Article 10 Right to Freedom of Expression.
However, the conflicting precedent says that even when Articles 2 and 3 are engaged, if the risk to the Applicant is a potential future risk then the Article 10 rights of the media should still be considered – so Article 2 &3 do not automatically trump Article 10. Therefore, there should be an intense focus on the nature and extent of the risks under Article 2 & 3, and a proportionality “balancing” test should be applied.
We do not know which approach is correct and won’t have an answer to that question until a senior court addresses the issue. But, it means that it is still worth challenging RROs concerning Articles 2 & 3 if there are strong freedom of expression grounds.
In this case, the media’s representative also argued that naming XX didn’t materially alter the risk that he/she normally faces, and that in any case, XX’s identity was already ascertainable on the internet. But as we have seen before, this did not stop the imposition of the RRO. In this case it was because it was deemed that the publication of additional information would significantly add to the risk XX faced.
Therefore, it is still the case that whilst the existence of information in the public domain is a persuasive argument when challenging an RRO, it won’t necessarily be a winning one in all cases.
At some point the conflicting precedents relating to Article 2 and 3 will be resolved, but in the meantime, submissions based on Freedom of Expression can still be made.