Gagging Orders - A Matter of Balance

A balancing act is always necessary when a case heard by the courts is of interest to the public but where revealing the facts and identifying the parties involved would infringe their right to privacy.

Normally, the balance is achieved by revealing either the facts of the case or the names of those involved, but not both.

A right to respect for one’s private and family life is guaranteed by Article 8 of the European Convention on Human Rights (ECHR). However, the right to freedom of expression, which is guaranteed under Article 10 of the ECHR, can be seen as guaranteeing members of the public access to information that is of interest to them.

The two rights often clash in ‘high profile’ news stories concerning legal proceedings. The position is complicated by the legal principle that justice should be dispensed in public, which is guaranteed under Article 6 of the ECHR.

Normally, the cases which test the balance between these principles involve celebrities and their attempts to obtain injunctions against newspapers to prevent them from printing allegations about their private lives.

In a recent case, the Court of Appeal held that celebrities should receive no special treatment on account of their fame and that a (possibly edited) copy of the judgment involving the celebrity should normally be made available to the public.

The Court ruled that the principle that must be followed is, in essence, that for reporting to be restricted, it is necessary that the judge is satisfied that the facts and circumstances justify departing from the open justice principle. Also, the judge must ensure that reporting restrictions are set out in a way which minimises their effect as far as possible whilst retaining protection for the person claiming anonymity.