This case relates to the controversial Iris Robinson ‘affair’ and the media fallout that ensued. On the 4th and 10th of April 2010 the Sunday World newspaper published a series of articles which included pictures taken in London of Mrs Robinson out for a stroll. In light of this, Mrs Robinson issued proceedings on the basis of breach of confidence/misuse of private information, harassment, and breach of her rights under Articles 2 & 8 of the European Convention of Human Rights. Moreover, and importantly for the matter at hand, she filed for an injunction preventing further surveillance, reporting, and in particular further reporting about the state of her mental health. This Order was granted on the 16th April 2010, and a date was fixed to hear an application to vary the terms of the Order.
At the hearing on the 16th April, however, the applicant made an application that any further review should be held in private. The appellant’s doctor swore two affidavits stating that further media intrusion and surveillance would adversely affect the appellant’s treatment, and would increase her risk of self harm, suicide, and further mental health deterioration. At the hearing on 21st April, it was argued that the substantive injunction hearing should be held in private. This hearing took place without hearing the sensitive and private material contained in the affidavits, and considered the net point of the privacy of the injunction hearing.
At this hearing, Tracy J considered the competing principle that justice should be administered in open courts. After all, not only must justice be done, but it must be seen to be done. Tracy J noted the following reasons for the importance of open justice:
Effectively, open justice is the antithesis of the Kafkaesque model, it promotes transparency and accountability in our judicial system. In light of this, Tracy J found that there was no reason why the hearing should take place in private, provided there were suitable reporting restrictions.
On appeal the appellant submitted that a private hearing was a precautionary step which could later be remedied by publication after the event. If the hearing was public, and the appellant’s mental health was adversely affected, it would be impossible to repair the damage done by a refusal to issue an order which would later turn out to become necessary. The appellant further argued that her right to private life under Article 8 ECHR would be best protected by private proceedings. Importantly, it was argued that while private hearings on the basis of privacy rights were rare, arguments based also on Article 2 Right to life were rarer still, and could only be adequately protected by a private hearing.
Interestingly, the appellant further submitted that while restricted reporting may once have provided adequate protection for the appellant, this was no longer the case due to the effect of social networking sites and Twitter. It was argued that Twitter in particular could lead to dissemination of the information on a widespread scale, with users much less likely to respect any reporting restrictions in place. In response to this, the Respondents argued that the personal rights invoked should yield to the principle of open justice.
Judgment
Interestingly, the Northern Ireland Court of Appeal created what could arguably lead to a small revolution in terms of privacy, the media, and the internet. Effectively, the Court held that while ordinarily the court would have been satisfied to order the hearing to take place in public with reporting restrictions, they could not ignore the changes in reporting which had taken place in recent years, and which were brought to notoriety in recent months. The court stated that:
We are satisfied that we should take judicial notice of the fact that social networking sites, Twitter and the internet generally now provides an alternative means of publication to traditional daily or Sunday newspapers.
The court further noted that the dissemination of information via these media are “difficult to control.” In light of these concerns, it was held that the medical concerns of the appellant would not be adequately protected unless the hearing was private, such was the risk that a public hearing would lead to a mass internet hysteria.
Comment
This case could potentially be a landmark in relation to the interaction between law, media, and social networking sites. It appears to be the first case to truly take into consideration how much Twitter has affected how we receive and impart information and opinion. Unfortunately for Tweeters, the judgment seems to run counter to all the reasons why such sites were created.
Twitter is remarkable in that it provides a direct link between information and its recipients. There are no papers involved, no go-betweens between the event and the information. Information often does not come from anyone of note, just a normal person who happens to find out something which interests people. This would seem to be a perfect environment for freedom of expression to flourish, but perhaps now the courts are reining it in, beginning with the Court of Appeal in Northern Ireland.
It would appear by this judgment that the solution of the court at this stage is that, if information is to be reported recklessly and without regard to individual rights, then access to such information will be curtailed, leading to more private hearings in sensitive matters. This is very much a reactive measure which sets the scene for interesting development in this regard. The relationship between the law and Twitter is in its infancy, and this truly represents the first strike from the law after many blows thrown from the other side.