May 23, 2022
The BBC wanted to broadcast a programme about “X”, which was to include allegations that: (i) X was a dangerous extremist and misogynist who physically and psychologically abused two former female partners; (ii) that X was also a covert human intelligence source (CHIS) for the Security Service (MI5); (iii) that X told one of these women that he worked for MI5 to terrorise and control her; and (iv) that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS.
The Attorney General applied for an interim injunction to prevent the BBC from broadcasting the programme on the basis that it would be damaging to national security and create a risk to the life, safety and private life of X.
The hearing was held partly in open and partly in closed.
In April 2022, as reported in Need to Know, Mr Justice Chamberlain granted the AG’s application for an injunction restraining the BBC from identifying X, while allowing it to convey what it regarded as the core elements of its story. Under the terms of the order, the BBC was prohibited from disclosing information that “directly or indirectly identifies” X. The order also specified, in very broad terms, which information would be “identifying”. Additionally, it stated that any outstanding disputes about that information were to be resolved by a further court order and gave directions on resolving such disputes.
Pursuant to the directions, the AG produced a lengthy table of categories of information that she said would give rise to a real risk of identifying X if disclosed. Some of these were agreed, but many were not, hence the need for a further court order. The hearing was again held partly in open and partly in closed.
On 18 May 2022, Mr Justice Chamberlain handed down an open judgment in two parts: Part I dealt with the general principles applied; and Part II considered the specific matters that the AG said would identify X if disclosed. Part II was handed down in private, with a request for submissions as to whether any of it could be made public without giving rise to a risk of identification.
Chamberlain J noted that in most cases where there is a prohibition on disclosing someone’s identity either by statute or by a court the prohibition is framed in general terms, and the question of whether publication might be “likely to lead to” someone’s identification is left to the judgment of the media. In Chamberlain J’s view, there are good reasons for doing this. Broadcasters and publishers are experienced in making judgments about what information can and cannot be published by considering what is already publicly known and, against that background, deciding whether a particular additional piece of information would give rise to a real risk of identifying the person concerned, considering also that information which would not be identifying at one point in time might be identifying later when more background information is publicly known. If they do not make the decisions in good faith, there are sanctions for contempt of court.
In Chamberlain J’s judgment, the proper approach should be that both sides simply agree a general provision prohibiting publication of information that directly or indirectly identifies X. There should be no need to supplement that by specifying categories of “identifying” information; doing so would constitute an unjustified interference with the BBC’s freedom of expression and there was no reason to doubt that the BBC would make decisions in good faith and responsibly in accordance with the general prohibition.
However, Chamberlain J said, any crystallised dispute about a specific piece of information had to be resolved to avoid the situation where the publisher or broadcaster must make decisions on what to disclose with the threat of contempt of court proceedings hanging over it, thereby creating a chilling effect. Further, some of the evidence was presented in closed proceedings only and had not been disclosed to the BBC. Where the dispute depended on such evidence, only the court could resolve it.
The parties agreed that the standard to be applied in deciding whether information was identifying was whether it was “likely to lead to” the identification of X. Chamberlain J noted that, according to case law, this phrase refers not to a statistical probability, but to “the real risk, the real danger, the real chance” that the person will be identified (Attorney General v Greater Manchester Newspapers Ltd, The Times, 7 December 2001).
In Chamberlain’s view, the focus had to be on the risk of disclosure to the groups which might wish to do harm to X if they knew that the BBC was alleging that he was a CHIS. However, he noted that in this case risk could eventuate in many ways, e.g. with members of the relevant groups watching the broadcast or reading a BBC report online and combining that information with information they already knew to identify X.
The court had to be alert to the possibility of this “jigsaw” identification, Chamberlain J said. However, it also had to be astute not to allow the threat of identification justify a blanket prohibition on disclosure of any piece of the jigsaw. The risk that disclosure would lead to identification must be at the level of a “real risk”.
Accordingly, Chamberlain J had to decide on the evidence (open and closed) whether the disclosure of specific pieces of information would give rise to a real risk that X would be identifiable to the groups who might wish to harm him. In reaching a view, he considered the categories of information individually and then asked himself whether a real risk of identification would flow from the cumulative disclosure of all the information which he considered could safely be disclosed. He had already decided that the AG was entitled to an injunction to prevent the BBC from disclosing information likely to identify X. The only issue was what information fell into that category. In Part II, which was handed down in private, he considered the specific information in question. (Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation  EWHC 1189 (QB) (18 May 2022) — to read the judgment in full, click here).