As its very new, we’re still feeling our way through how we will run this project – and we have recently had to deal with the thorny issue of what the limits are on comments about individual cases.

We have an “Editorial Policy” here, which sets out that we will and will not publish. That document is a working draft but we’re happy with it for the moment. We also have a “Ground Rules” document here – there is obviously some overlap although I think no inconsistency. We will need to merge these documents in due course and more clearly signpost the resulting single document.

Anyway, the issue that troubled us last night (and into the wee small hours) was the practical application of our policy when a commenter refers to their own case. There are potentially three main issues with such comments :

1. Defamation
2. s12 Administration of Justice Act 1960 (this is a privacy law which makes it a contempt of court to publish information about what has gone on in court in a family case unless the court has said its ok)
3. s97 Children Act 1989 (this is a privacy law which makes it a criminal offence to identify a child who is the subject of a family court case)

The comment in question was the comment by Sam on January 6, 2015 at 5:08 pm here. Ultimately, we’ve reached a consensus about what we are all happy publishing, which is most of the comment. But what was interesting was the quite different views of the group members about the application of s12 AJA in practice. Several of us are bloggers and we all had quite different reactions to the comment. All of us wanted to publish it, but some of us felt that we were prevented from doing so, at least in relation to bits of the comment, because of s12. We’ve agreed that we will moderate according to the view of the most cautious of us, but we have also agreed that we will try and edit or moderate out comments as infrequently as possible – we want to publish as much as we can (after all, we are the Transparency Project). There is a tension here, and it will no doubt come up again, particularly since we are moderating in between our real jobs and with pressure on our time. My personal policy on the blog is to scrutinise as carefully as my time will allow but if I don’t have time and I’m not sure it doesn’t get published. But then I have personal experience of publishing something that someone took serious issue with once before (saying it was defamatory. It wasn’t but that didn’t prevent it from becoming a big issue).

I won’t set out the whole of the law on s12 here, but its worth summarising it a little bit so you can see what we’re up against when making decisions about your comments.

Firstly, s12 itself refers to the

“publication of information relating to proceedings before any court sitting in private…
where the proceedings—
(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)are brought under the Children Act 1989; or
(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;“

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J (now the President of the Family Division) said :

“At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F … , the belief seems to have lingered on well into the 1980s … Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court … At one time, and even after the Court of Appeal’s decision in In re F, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words “information relating to proceedings before [the] court sitting in private”. For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged … It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom. … In contrast, section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings.”

and for a long time that has been the basis on which we have all proceeded.

Subsequently, in Re K (A Child: Wardship: Publicity)(No 2) [2013] EWHC 3748 (Fam) (25 July 2013) at §54-63, HHJ Bellamy (sitting as a High Court Judge) summarised s12 like this :

Last year in Re J (A Child), Re [2013] EWHC 2694 (Fam) (05 September 2013), the President of the Family Division considered when it would be appropriate to grant an injunction to bolster the provisions of s12 in an individual case, and made plain that the manner or style of publication is neither here nor there, the only basis upon which an injunction can properly be granted restraining free speech is that it is necessary in order to protect the child’s Article 8 rights and, in particular, his privacy and anonymity. The President expanded upon the pressing need for greater transparency. The President also reminded us that s12 does not protect the identity of any person, it is only s97 that does that (and whilst s12 is indefinite s97 only applies whilst the court case runs).

What troubles me is that even practising lawyers, legal academics and legal publishers can hold different views about what is permissible under s12. Although we have ultimately come to a consensus it is a pretty clear indicator that it is a minefield for non-lawyers – how are they supposed to know what is allowed and what isn’t? Of course, the reality is that there are many many clear breaches of s12 every day on the internet, some by people who don’t know they are in breach and some by people who don’t care. The vast majority of those breaches go unpunished, and even where attempts are made to restrain publication (as in Re J) they are not always successful. It is ironically the lawyers who are attempting to enhance transparency who probably feel most cautious about this because it is possible that the court would consider a breach by a practising lawyer to be particularly serious, and it could have quite significant professional consequences (as Harriet Harman’s sister found out to her cost in Re B).