“The only way to make sense out of change is to plunge into it, move with it, and join the dance.”
I wrote here yesterday about the conflict between publicity and privacy in financial remedy proceedings. Whatever your views on that, I think all will agree that there are family law cases where privacy must prevail, especially where children are involved. However, maintaining privacy in the age of the internet can be far from easy, as was demonstrated last week in the case H v A (No 2).
As the name suggests, H v A (No 2) was the second reported judgment in the case. In fact, it was all about the publication of the first judgment, H v A (No 1). H v A (No 1) concerned an application by a mother to revoke an order for indirect contact between the father and their three children, following an extremely serious incident when the father set fire to the passenger seat of his own car and drove it into the family home whilst the mother and the children were inside. Fortunately, the mother and the children escaped the burning family home without sustaining injury. The father was charged with arson with intent to endanger life. He was convicted and sentenced to 8 years in prison.
The mother’s application went before Mr Justice MacDonald in the High Court. He made an order that the father should have no contact with the children, either of a direct or an indirect nature. In accordance with the President’s transparency guidance, Mr Justice MacDonald concluded that publication of the judgment would be in the public interest. Accordingly, the judgment was anonymised by removing the names of the children, the parties and their solicitors to protect the privacy of the family, in particular the children, and duly placed on the Bailii website.
Following the appearance of the judgment on the Bailii website, the Press Association reporter based at the Royal Courts of Justice alerted Mr Justice MacDonald that it was possible using certain of the facts set out in the judgment (facts already in the public domain) as search terms to identify the name of the family in the case by means of information available on the internet. Specifically, an internet search conducted by reference to those facts revealed a number of press reports concerning the circumstances surrounding the criminal convictions of the father. Those press reports named the father (and therefore, by extension, the family) and identified the address of the former family home. At least one of the press reports concerning the criminal proceedings gave the full name of one of the children of the family by reference to an unrelated incident. As a result of this Mr Justice MacDonald requested that Bailii remove the judgment, and invited further submissions by the parties.
The matter went back before Mr Justice MacDonald, for him to consider whether the judgment should remain unpublished, and whether a reporting restriction order should be made prohibiting the publication of the identity and whereabouts of the mother and children and any information likely to identify them or their whereabouts. Mr Justice MacDonald decided that the judgment should be published in its original format, and made the reporting restriction order. He said:
“In the age of the internet, where today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms, ‘jigsaw identification’ will arise as a potential issue in every case where the family court publishes a judgment in proceedings arising out of a set of facts that have also led to criminal proceedings that have been the subject of reports in the media.”
In effect, Mr Justice MacDonald was accepting the new reality that it may in practice be quite impossible to protect privacy in cases (and there must be many of them) where information about the family is already in the public domain. He could, of course, have ordered that the first judgment should remain unpublished, but that would be to ignore one of the crucial features of the internet: what goes out there remains out there – forever. It is almost impossible to remove all trace of something that is published on the internet.
But even if it was possible to completely remove the original judgment and all the copies that had been made of it, what about all the newspaper reports, and other references to the case? And what if someone maliciously published something about the case? OK, they could be committed to prison for contempt and ordered to take down what they had published, but that would simply be shutting the stable door after the horse had bolted.
What is the answer? Well, obviously if there is nothing already online to identify the family then it should be possible to protect privacy, but in other cases I don’t think there is an answer. By all means, anonymise judgments and make it as difficult as possible for anyone to identify the family (which probably isn’t very difficult at all), but accept that maintaining full privacy is just not possible. If that is accepted, then other methods of protecting the family may be utilised, such as changing names and moving home. The secret may be in understanding that privacy is not possible by ‘conventional’ means, and thereby realising that other methods must be used.
In short, there is nothing we can do to turn back the clocks. We must simply accept that information is out there, and proceed accordingly.