Bírósági ítéletek anonimizálása Nagy Britanniában

Az előző bejegyzéshez tartozik néhány részlet az A, K and M v HM Treasury (Anonimity) [2010] UKSC 1 ítéletből. A kérdés: jogszerű -e a terrorakciók előkészítésének támogatásával gyanúsított brit állampolgárok nevének teljes anonimizálása. Részletek az ítéletből:

1. “Your first term docket reads like alphabet soup.” With these provocative words counsel for a number of newspapers and magazines highlighted the issue which confronts the Court in this application. In all the cases down for hearing in the first month of the Supreme Court’s existence at least one of the parties was referred to by an initial or initials.

22. In the United Kingdom, until the recent efflorescence of anonymity orders, the general rule both in theory and in practice was that judicial proceedings were held in public and the parties were named in judgments. Their names would also be given in newspaper reports and in the law reports. That is still usually the position – as can be seen from the frequent press reports of, say, employment tribunal hearings and decisions where details of personal and sexual relationships among the warring parties are a common feature.

43. The case is, accordingly, one where both articles 8 and 10 are in play and the Court has to weigh the competing claims of M and his family under article 8 and of the press under article 10. More particularly, the Court is being asked, on the one hand, to give effect to the right of the press to freedom of expression and, on the other, to ensure that the press respect M’s private and family life.

44. M objects to being identified as a person who is challenging the freezing orders against him which proceed on the basis that the Treasury suspects on reasonable grounds that he facilitates, or may facilitate, terrorism. In other words, what he really objects to is being identified as a person who the Treasury suspects, on what it regards as reasonable grounds, facilitates or may facilitate terrorism. He maintains that, if he is identified as such a person, his article 8 Convention rights will be infringed in the various ways outlined in para 21.

51. Lord Hoffmann’s formulation was adopted by Lord Hope of Craighead in In re BBC [2009] 3 WLR 142, 149, para 17. Since “neither article has as such precedence over the other” (In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 603, para 17, per Lord Steyn), the weight to be attached to the rival interests under articles 8 and 10 - and so the interest which is to prevail in any competition - will depend on the facts of the particular case. In this connexion it should be borne in mind that – picking up the terminology used in the Von Hannover case - the European Court has suggested that, where the publication concerns a question “of general interest”, article 10(2) scarcely leaves any room for restrictions on freedom of expression: Petrina v Romania (application no 78060/01), 14 October 2008, para 40 (“l’article 10(2) de la Convention ne laisse guère de place pour des restrictions à la liberté d’expression dans le domaine … des questions d’intérêt général”).

52. In the present case M’s private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann’s formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

54. In France, for instance, until recently, the general rule was that the parties’ names were published. This led to an interesting case brought by the husband against the publishers of a law report of a divorce case in which he had been the defendant. The report identified him and the judgment gave embarrassing details about his sexual habits: Franconville c Gazette du Palais, Tribunal de grande instance de Paris 8.12.1971, Gaz Pal 1971, 2 Jur 836; Page 20 Gazette du Palais c Franconville, Cour d’appel de Paris 12.1.1973, Gaz Pal 1973, 1 Jur 137. The appeal court held in favour of the publishers and - rather as in Britain - legislation was subsequently brought in to change the law on the reporting of matrimonial cases. In 2001, however, the Commission Nationale de l’Informatique et des Libertés recommended that, if decisions were going to be made available free of charge on the internet, then they should be anonymised. Since 2002 the Cour de cassation has chosen to follow that recommendation and usually its decisions now appear without the parties’ names. The Recueil Dalloz gives the parties’ names in the headings, but prints the anonymised version of the text of the judgment. It is important to note that the press can, and do, consult the lists of cases, where the names appear, and in this way they are able to identify the parties when reporting the proceedings.

55. In Italy the general position is the same as it was in France before the changes initiated in 2002. In Germany, by contrast, the practice since the time of the Reichsgericht has been for the courts and the official reports to refer to the parties by the initials of their surnames or of their firm or company name. Also the parties’ lawyers are not identified. The practice in Austria is broadly similar.

56. Until recently, the German courts rigidly followed this practice even where a case had received wide publicity and the names of the parties were actually well known to the public. They did the same when the judgment referred to the holder of a particular office, such as the Federal Chancellor, whose identity was common knowledge. The results could be risible and so, more recently, the courts have abandoned the practice in cases where the identity of a party, such as Princess Caroline of Monaco, is well known to the press and everyone else. [...] The usual practice means that it is sometimes only when a case reaches the European Court of Justice or the European Court of Human Rights and the names are published for the first time in their judgments that people in Germany discover who the parties actually are. See Siehr, “Veröffentlichte Gerichtsentscheidungen”, pp 482-483.

57. Despite criticisms, the German courts have followed the same practice for considerably more than a century. Some scholars have argued that a legal basis or justification for the practice can be found in the constitutional right of individuals to control of their personal data, as developed in the 1983 Page 21 Constitutional Court judgment on the Census Law (Volkszählungsurteil): BVerfGE 65, 1. All that needs to be said for present purposes is that this is certainly not the origin of the courts’ practice, which existed long before the German Federal Constitution. Even now, there is doubt about the exact explanation for it. One suggestion is that the courts do not mention the names because their view of the law must be seen to be objective and unaffected by the standing of the parties or their lawyers. At all events, when it uses initials and supplies the public with a version in which the parties’ names are blanked out from the rubric, a German court is not trying to control how the case is to be reported by the press. Newspapers are free to use their own knowledge to identify the individuals involved and to name them in any report of the proceedings or judgment. While an anonymous version of the judgment may usually meet the needs of lawyers, the target audience of the press is likely to be different and to have a different interest in the proceedings, which will not be satisfied by an anonymised version of the judgment. In the general run of cases there is nothing to stop the press from supplying the more full-blooded account which their readers want.

59. As one of the witness statements lodged on his behalf acknowledges, if publication were permitted, M would not be identified as someone who facilitated terrorism, but as someone whom the Treasury claims to have reasonable grounds to suspect of facilitating terrorism. But his fear is that, however accurate the reporting, members of the public would simply proceed on the basis that he is a terrorist. So the ban on publication, he says, should remain in place to prevent this.

60. That argument raises an important point of principle. It really amounts to saying that the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately. Doubtless, some may indeed draw the unjustified inference that M fears. But the public are by now very familiar with the argument that various measures, including control orders, have been taken against people who are merely suspected of involvement in terrorism, precisely because the authorities cannot prove that they are actually involved. Politicians and the press have frequently debated the merits of that approach, the debates presupposing that members of the public, including members of the Muslim community, are more than capable of drawing the distinction between mere suspicion and sufficient evidence to prove guilt. Any other assumption would make public discussion of these and similar serious matters impossible. We therefore see no reason to assume that most members of the local Muslim community would be unable to draw the necessary distinction and to respond appropriately to any revelation that the Treasury suspects that M facilitates, or may facilitate, terrorism.

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 Page 23 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.

66. Importantly, a more open attitude would be consistent with the true view that freezing orders are merely indicative of suspicions about matters which the prosecuting authorities accept they cannot prove in a court of law. The identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuti ng authorities are not even in a position to charge with an offence and bring to court. But, by concealing the identities of the individuals who are subject to freezing orders, the courts are actually helping to foster an impression that the mere making of the orders justifies sinister conclusions about these individuals. That is particularly unfortunate when, as was emphasised on the appellants’ behalf, they are unlikely to have any opportunity to challenge the alleged factual basis for making the orders.

68. Certainly, the identities of the claimants cannot affect the answers that this Court gives to the legal questions in the substantive appeals. So those identities may not matter particularly to the judges. But the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in not being kept in the dark about who are challenging the TOs and the AQO. The case of HAY is instructive in this respect. Most people will be astonished, for example, to learn that, up until now, the courts have prevented them from discovering that one of the claimants, Mr Youssef, has already successfully sued the Home Secretary for wrongful detention after a failed attempt to deport him to Egypt. Equally importantly, even while the Treasury is defending these proceedings brought by him, the Government are trying to have his name removed from the 1267 Committee list. Meanwhile, he is busy writing and broadcasting from London on Middle East matters.

72. Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra’s identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press. James Madison long ago pointed out that “Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press”: “Report on the Virginia Resolutions” (1800), in Letters and Other Writings of James Madison (1865) Vol 4, p 544. The Press Complaints Commission is the appropriate body for dealing with any lapses in behaviour by the press. The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation.

73. Although it has effects on the individual’s private life, the purpose of a freezing order is public: it is to prevent the individual concerned from transferring funds to people who have nothing to do with his family life. So this is not a situation where the press are wanting to publish a story about some aspect of an individual’s private life, whether trivial or significant. Rather, they are being prevented from publishing a complete account of an important public matter involving this particular individual, for fear of the incidental effect that it would have on M’s private and family life.