Sep 26 2008

Anonymity and privacy in case reporting in Scotland

A few days ago, I noted a problem that arose in part because of the inconsistent practice of courts and tribunals in Scotland in anonymising case reports. Since the decision in Ibrahim, the Lord President has issued a Practice Note, no. 2 of 2007, ‘Anonymising Opinions Published on the Internet‘, which came into force on 20 July 2007. Strangely, this is not published anywhere on the Scottish Courts website, which inexplicably gives a completely different practice note as being no. 2 of 2007, but it is published in the Parliament House Book at C2063. Its purpose is said to be “to advise on the policy of the court on the anonymising of opinions of the Court of Session that are published on the internet“. Other than cases where orders have been made to prohibit publication or identification1, the only category of opinions in which anonymity will be the norm is cases involving asylum seekers; the note states “the court… is satisfied that the publication of the names of asylum seekers may create avoidable risks for them…” and provides that they will be anonymised unless the court gives a direction to the contrary. There is a rather general statement that “it may be appropriate to extend the protection of anonymity to other circumstances“; for example, “where… evidence concerning children discloses sexual abuse,… the Court may2 frame the opinion in a way which affords anonymity to that child” and “may2 do the same in cases relating to adults… where publication of the details would distress them“.

Not a lot of policy there then, and particularly ineffectual when the practice note isn’t published in the usual manner. So far as I know, there is no equivalent statement of policy for sheriff court cases at all; this might require practice notes in each sheriffdom. There are at least two recent cases in which the Court of Session has anonymised parties, when the sheriff court has, in parallel proceedings involving the same litigant, named him: C v C, 2008 CSIH 343, and RAB v MIB, 2008 CSIH 524. The Mental Health and Disability Committee of the Law Society, in its evidence to the Civil Court review, was right to say “the Scottish Court Service appears to have an inconsistent policy on protecting the anonymity of people involved in mental health and incapacity cases… It must be questionable whether there is any public interest in having patients’ details published on the internet, easily accessible by a simple web search. It would be helpful if the Scottish Courts Service could develop a consistent policy“.

Contrast this with tribunals and other similar decision makers. As examples, the Additional Support Needs Tribunal says “[Our] decisions are published in such a manner as to protect the anonymity, and safeguard the welfare and interests of the child or young person or any other person; as well as to protect the private life of any person“. The Scottish Public Services Ombudsman says: “Unless there are exceptional circumstances, none of the people involved will be named in the Report“.

A starting point for policy for the Scottish Courts Service might actually be the law, in the form of the Data Protection Act 1998 which, with article 8 of the European Convention on Human Rights which also protects privacy5, is binding upon the courts. The publication of a court opinion which reveals the personal data of individuals, such as details of their private lives, road accidents, or health, will be a disclosure of personal data in terms of section 1 of the Act. That disclosure may be exempt from the non-disclosure provisions of the Act, most obviously under section 35 if it “... is necessary— (a) for the purpose of, or in connection with, any legal proceedings“. But how often is the naming of individuals, with personal details to the release of which they have not consented, truly “necessary6? The Practice Note states that the “circumstance that publication on the internet gives readier access… to a wider public” does not affect the general principle: that seems highly doubtful. It would certainly be very hard to defend as lawful the casual publication on the internet of sensitive personal data of named persons such as descriptions of failed medical procedures, which would certainly not be lawful outwith court proceedings without their consent: yet Scottish courts do this all the time. The Practice Note gives no indication that the policy of the Data Protection Act, or human rights considerations, were actively considered.

The Canadian Privacy Commissioner recently commented7:

“… I am not convinced that the broad public needs to know the names of individuals involved or requires access to intimate personal details through decisions posted widely on the Internet.

When these cases were accessible only in specialized legal texts, or search engines accessible to legal professionals only, or copies could be picked up by making a trip to the basement records room of a court or tribunal, the concept of practical obscurity always operated in favour of privacy protection and the need-to-know principle.

The story is now different when decisions containing highly sensitive personal information are made available to anyone with an Internet connection. I don’t believe we would take away from the educational value of these decisions by replacing names with initials, for example.”

  1. Under section 4(2) of the Contempt of Court Act 1981; section 46 of the Children and Young Persons (Scotland) Act 1937; section 44 of the Children (Scotland) Act 1995; and some other statutory provisions. [back]
  2. My emphasis. [back] [back]
  3. See also C v C 2008 CSOH 42. As this was a case where the Court of Session had made an order prohibiting identification, I do not link to the sheriff court decision in question. [back]
  4. See my previous posts here, and here. [back]
  5. In Mosley v News Group, [2008] EWHC 1777, Eady J said (paragraph 7) “Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. That is because the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem. It is not simply a matter of “unaccountable” judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts“. [back]
  6. See East Lothian Council v D, 2008 CSOH 137, paragraph 36, quoting Dyson LJ in Pabari v Secretary of State [2005] 1 All ER 287: “‘Necessary’ is a somewhat protean word whose meaning depends on the context in which it is used. In some contexts, it means ‘indispensable’ or ‘essential’. …In some contexts, the word ‘necessary’ has a weaker meaning. But it will usually bear the connotation of some degree of compulsion or exigency. The context will determine where on the spectrum of compulsion or exigency the word ‘necessary’ is placed“. [back]
  7. See also ‘A clarification on court decisions‘; ‘Anonymization of parties’ names in Canadian case law?‘ and ‘Online tribunal evidence leaves citizens’ data open to abuse‘ and, for a comparison with German practice, ‘Names in Court Decisions‘. [back]
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