Anonymisation: a departure

Hayden J has lifted reporting restrictions and named Mrs N and her daughter, following his seminal judgment that it was not in the best interests of Mrs N, who was in a minimally conscious state, to receive life sustaining treatment.  Mrs N has been named as Susan Rosenbaum and her daughter as Miranda Rosenbaum.  After Ms Rosenbaum died,  her daughter applied to extend the reporting restrictions which had prevented her being named.

Hayden J applied the test set out by Charles J in Re C.  He contrasted the what was described as the prurient reporting in Re C with the reporting in the instant case,which had focussed on the issues rather than titillating gossip.

He noted the argument that an inquest into Ms Rosenbaum’s death would not be held in private.

Carrying out the “balancing act”, Hayden J held:

 

    1. The experience of grief is one unique to the individual, it takes on many forms. I am sure that this family began to grieve for Mrs N some considerable time ago. I am equally confident that their present grief is none the weaker for being in some way already familiar. I have no doubt that having brought this application M, in particular, requires both peace and privacy. I feel bound to say that she falls securely within those individuals contemplated within the Editor’s Code of Practice (see para 19 above). Though there is of course no guarantee against press intrusion, there is no evidence at all of any having occurred in the last few months, as there might have been, notwithstanding the existence of the interim order. Nor does a dispassionate analysis of the facts point to any significant intrusion in the future.
    2. Judges of this Court are not inured to the day to day realities in these cases. I have no doubt that those closest to M and her family, those who matter to the family the most, will have identified Mrs N from the facts of the case. For those beyond that circle, the name of the individual serves only to make her story more real and the issues it raises more acute. Therein lies the public interest. By contrast the introduction of both Mrs N’s and M’s name into the public domain has relatively limited impact on M’s privacy or Article 8 rights more generally. Certainly there is no real evidence to that effect.
    3. In Re Guardian News and Media Limited [2010] UKSC 1[2010] 2 AC 697 Lord Rodger’s addresses this issue in paragraphs which, for obvious reasons, have become well-known:

“63. What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, “judges are not newspaper editors.” See also Lord Hope of Craighead in In re British Broadcasting Corpn [2009] 3 WLR 142, 152, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that

“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.

    1. I am acutely conscious of M’s deep seated wish to preserve her mother’s anonymity in this case, as well of course, as her own. For the reasons I have analysed above I have come to the firm conclusion that the balance here weighs more heavily in favour of freedom of expression. It may well be that Charles J contemplated a situation not dissimilar to that which has arisen here in V when he said (at para 150):

“I also accept that in contrast to many cases covered by the Transparency Pilot, a number of serious medical treatment cases focus on the pros and cons of particular medical treatments and so do not engage wider issues relating to P’s private life or that or P’s family. And it may be that this will lead to a number of injunctions in such cases being limited to P’s lifetime. But, in my view, this should not be a presumption or default position.”

  1. Of course, as has now been analysed in a number of cases in the Court of Protection, evaluating P’s best interests will invariably involve the Judge considering the wider canvas of P’s life, often via the conduit of evidence from family members. Inevitably, that involves an inquiry into the private sphere which will usually engage facets of the rights protected by Article 8. It is unlikely, in my view, that many cases will be confined solely to assessing the advantages or disadvantages of a particular course of treatment without considering some of the circumstances of the individual patient. In this case whilst I have undoubtedly considered features of Mrs N’s life, character and personality, the issue of withdrawal of hydration and nutrition from a patient in MCS is plainly the predominant one. Indeed, I think it can properly be characterised as one of the major issues in contemporary life.
  2. The challenge, in the parallel analysis of the competing rights and interests in play, is that the rights in contemplation are of wholly different complexion. The exercise involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.
  3. Mrs N, Susan Rosenbaum as she may now be known and her daughter M, Miranda Rosenbaum, have, whilst unnamed, already gained the respect and sympathy of the vast majority who read about them. The case, brought by Ms Miranda Rosenbaum, has also added significantly to the public knowledge and understanding of issues that any one of us might have to confront. As I have already commented, there are echoes of her mother’s own courage and determination, from that legal action 40 years ago, reverberating through this application. Ms Miranda Rosenbaum has shown enormous strength in bringing this application. I hope that this family will be allowed peace and privacy to heal from their long ordeal.”

Hayden J noted that intrusion by the media on the family’s grief would breach the IPSO Code of Conduct and took the unusual step in his judgment of providing details of IPSO’s website: https://www.ipso.co.uk/IPSO/harassment.html.

 

 

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