Publish and Be Damned ? Gallagher-Appleton divorce

See judgement here

Scandal mongering is nothing new. In December 1824, the publisher Joseph Stockdale wrote to the Duke of Wellington: 'My Lord Duke, in Harriette Wilson's Memoirs, which I am about to publish, are various anecdotes of Your Grace which it would be most desirable to withhold, at least such is my opinion. I have stopped the Press for the moment, but as the publication will take place next week, little delay can necessarily take place.'

Stockdale and Wilson were willing to omit Wellington from the memoirs, in exchange for money – in effect, attempted blackmail.  Field Marshal Arthur Wellesley, 1st Duke of Wellington KG, GCB, GCH, PC, FRS, was a soldier and statesman, the victor of the battle of Waterloo and the vanquisher of Napoleon, and subsequently a leading political figure in 19th century Britain. Harriette Wilson was a London society courtesan, with whom Wellington, a married man, had had a long running liaison.

Arguably, Wellington’s reported response  to Stockdale -  'Publish and be damned’ –worked.  Wellington suffered no loss of status or reputation; and Stockdale and Wilson made money, although Stockdale was later beset by costly (unrelated) litigation with Hansard, the parliamentary reporter.

The memoirs were described as a ‘disgusting and gross prostitution of the press’ (A Commentary on the Licentious Liberty of the Press, London, 1825), which doubtless helped sell yet more copies of the book (31 editions in one year, with excerpts pirated and sold as illustrated broadsheets, and French and German editions quickly appearing).

Now consider Gallagher v Appleton, the latest ‘celebrity’ divorce to be widely reported, in The Sun, The Mirror, The Daily Mail, local press, etc. The case has been transferred to the High Court, News UK having applied for permission to publish details of the financial remedy proceedings. The Guardian has reported the story as follows (emphasis added):

‘Jacob Dean, counsel for News UK, said that no evidence had been presented to suggest that reporting the proceedings would cause damage or distress. Coverage of divorce cases enables the public to learn about how the divorce courts operate and how fair divisions of assets are reached, he said. “The way the public is educated is in reading stories about people and what happens to them when they are involved in proceedings,” he added. He went on to say that relying on only anonymised reports would not generate much coverage in the media. Many of the details of the couple’s private life had already been widely reported in previous stories.

Other high profile cases, such as the divorce between the former Beatle Paul McCartney and Heather Mills were covered by the media, the high court was told. But Patrick Chamberlayne QC, who represents Appleton, told the hearing: “Both of those spouses had waged their battle through the press outside [court].

“There had been massive public speculation as to what the award would be. It had reached such a pitch that it would have been impossible to anonymise any judgment or say that it would not be published.”

By contrast, he stressed, there had been no speculation or awareness of the Gallagher/Appleton financial remedy proceedings in the run up to last week’s hearing. “It’s impossible to say that this falls into the McCartney/Mills category,” he said. “There’s no important legal principle. It’s sharing, it’s matrimonial assets.

“Is the simple fact that the couple is famous sufficient to displace the presumption of anonymity and confidentiality? I don’t see that should be so. There’s no simple fame exception to the principle of anonymity and confidentiality. This couple [Gallagher and Appleton] have not spoken about their divorce in a warring way or scoring points through the media.”

What are the relevant principles, and how should they be applied ? What difference is made by the internet and social media compared with print media ? And what about any children ?

The principles

The European Convention on Human Rights (ECHR), article 6, sets out the unqualified right to a fair trial; and article 8 sets out the qualified right to respect for private and family life. Article 10 is the qualified right to freedom of expression and information. These rights are of general applicability.

Family proceedings are usually conducted in private, although since  27 April 2009 duly accredited members of the press have been entitled to sit in court and listen to the proceedings (but not report upon them without the court’s permission) – Family Procedure Rules 2010 (FPR) r 27.11.

The court has the power to exclude the media, either of its own motion or on application by one or more of the parties, on the grounds that this is necessary: 

  • in the interests of any child concerned in, or connected with, the proceedings;
  • for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
  • for the orderly conduct of proceedings.

None of that should be taken to detract from the importance of ECHR Art 10 rights, in a democratic society.

The court may exclude the media altogether, if that is necessary to ensure justice will not be impeded or prejudiced. As ever, the court has to conduct a balancing exercise as between article 8 and 10 rights  – and article 6 rights, if appropriate. The purpose of any such application is not to limit the media's reporting rights (which remain restricted in relation to children in any event), but to deny the media altogether their presumptive right under r 27.11(3) to be present for the purpose of exercising a ‘watchdog’ role (with limited reporting rights).

The court must consider ‘the nature and sensitivities of the evidence', and the media’s watchdog function. The applicant must show that press attendance in court cannot be adequately managed within existing safeguards in respect of the identification of parties and of the Administration of Justice Act 1960, s 12 (which regulates the publication of information relating to proceedings in private). Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam) [2009] 2 FLR 1467[2009] 2 FLR 1467 sets out guidance regarding exclusion of the media from the courtroom.

Notwithstanding the presumption that media representatives are entitled to attend most family proceedings, the general law of confidentiality and contempt relating to ‘publication' continues fully to apply. The Children Act 1989, s 97(2) provides that:

No person may publish to the public at large or any section of the public any material which is intended or likely to identify:

–any child as being involved in any proceedings before the Family Court, in which any power under the Children Act 1989 or the Adoption and Children Act  2002 may be exercised with respect to that or any other child; or

–an address or school as being that of a child involved in any proceedings.

It is a criminal offence to contravene this, although no offence is committed if the accused proves that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child.

This provision ends when the relevant proceedings end.

The Administration of Justice Act 1960 s12 states that:

‘(1) The publication of information relating to proceedings before any Court sitting in private shall not of itself be a contempt of court except in the following cases, that is to say –

(a)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 the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor; …'

The restrictions imposed by the Administration of Justice Act 1960, s 12 continue after the end of the proceedings, and the High Court has jurisdiction to make long-term injunctions restricting reporting and publication of proceedings relating to a child. This should be consideration when a final order is made in Children Act 1989 proceedings, if there is any need for continuing anonymity.

The High Court may exercise its inherent jurisdiction to relax or to reinforce the restrictions contained in the Administration of Justice Act 1960, s 12 or the Children Act 1989, s 97(2). The relevant case law makes it clear that in applying the principles, a case by case approach is required, balancing competing rights and interests on the basis of the particular facts of each case.

Importantly, the children of celebrities are not in a special category in relation to media attendance in court or in relation to the reporting of a case. However, it is ‘almost axiomatic' that media interest will be more intense in such cases. The courts have recognised that the need to protect the child from intrusion or publicity, and the danger of information leaking out into the public domain, will similarly be the more intense - see  Child X (Residence and Contact – Rights of Media Attendance – FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR 1467.

Transparency

The President of the Family Division is considering how to ensure that the Family Court’s decisions are ‘transparent’, as well as how to answer the accusation that the Family Court is a ‘secret court’ (as opposed to a court which sits in private). The President has published guidance (Practice Guidance: Transparency in the Family Courts: Publication of Judgments (January 2014) [2014] 1 FLR 733), and is consulting on how to improve transparency.

The anonymised publication of Family Court judgments on the (free and available to all) BAILII website is  seen as a helpful way to achieve this.  Circuit judges and above are already expected to publish all their judgments.

The President is currently considering whether (and if so, what) court documents should be disclosed to the press, see link.

So what of Gallagher v Appleton ?

News UK (formerly News International, and the publishers of ‘The Sun’, and ‘The Times’, whose main competitor, DMG Media, publishes the Daily Mail and the Mail on Sunday) has applied for permission to report details in the case, claiming that this is an important way to educate the public about the way the divorce courts (sic) decide financial matters.

Ms Appleton’s counsel has answered this argument by saying that there is ‘…no important legal principle. It’s sharing, it’s matrimonial assets…

Is the simple fact that the couple is famous sufficient to displace the presumption of anonymity and confidentiality ? I don’t see that should be so. There’s no simple fame exception to the principle of anonymity and confidentiality. This couple [Gallagher and Appleton] have not spoken about their divorce in a warring way or scoring points through the media.’

Put another way, there is nothing of legal interest in the case which might inform or educate the public (unlike, for instance, Parlour, through which new legal principles evolved, and which by coincidence concerned a famous football player).

Perhaps tellingly, News UK’s counsel suggests that what helps educate the public is reading ‘stories about people’; and he states that anonymising any information about the case would ‘not generate much coverage in the media’.  The obvious conclusion is that if Mr X and Ms Y of Anytown were divorcing and had similar matrimonial assets to share, there would be nothing to stimulate the public’s appetite for information about what the court decided and why. Not only would the public not benefit from being educated, but there would also be no commercial justification for any of News UK’s publications to run the story, because it would not sell newspapers.

So, is this a case of public interest (in which the balance comes down in favour of ECHR article 10, over article 8, and application of Administration of Justice Act 1960, s 12 should be relaxed); or a case that interests the public (with the balance in favour of article 8, and the Administration of Justice Act 1960, s 12 remaining fully in force) ?  

What about the internet ?

Yesterday’s news is no longer tomorrow’s fish and chip papers.  Newspapers increasingly regard themselves as ‘digital first’ media, i.e. news websites that happen to print a paper version, rather than the other way round.  News items posted on their websites are there, potentially, for ever.  They can also be spread globally, rapidly and easily. 

Added to that, individuals and businesses use social media as a matter of course, with digital marketing as a major development, and numbers of clicks per hour on a website an important indicator of its popularity (and therefore its marketability to advertisers).

How can the family courts control the disclosure of information in these circumstances ?

Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, concerned the publication on the internet of information (including video footage of the child being removed from the parents’ care) by a father. The local authority applied for a contra mundum publicity injunction,  i.e. against the world at large, until the child's 16th birthday. The President heard the case. He underlined the need  for transparency in family cases, where the orders made can be draconian and where there is a public interest in permitting discussion of the issues raised. In this case, the balance between such transparency, and privacy for the child, was struck by the court prohibiting publication of the child's name but permitting publication of the video images, taken when the child was a day old (so, it was reasoned, they could not be used to identify him in the future).

The court considered the implications of injuncting persons, such as internet providers, based outside the jurisdiction. If the person is named, service has to be as required by the law of that person’s home jurisdiction, and there must be evidence of enforceability in the foreign jurisdiction. For a contra mundum injunction, the practice applied in worldwide freezing order cases should be used, with the court’s permission required for enforcement outside England and Wales.

The difficulty remains that once information is available on the internet or through social media, even if it is later removed, any damage will have been done, and the legal remedies, such as for contempt of court, are unlikely to cure the harm. In this case, with regard to the publication of the video footage, no-one, of course, knows how the child, when older, will feel about that.

Children and anonymity

Mr Gallagher and Ms Appleton have a 14 year old child together, and there are half siblings as well.  The views of children can be overlooked when family relationships break down, even when residence and contact are the focus of any dispute, even more so when the only issue before the court is finance.

It is not clear from the media coverage whether any of the children of this family have been consulted about the press reporting of the parents’ court case. If the United Nations Convention on the Rights of the Child is to be respected (particularly article 12 - respect for the views of the child: when adults are making decisions that affect children, children have the right to say what they think should happen and have their opinions taken into account), then they should be asked what they think.

Recent research in relation to the views and concerns of children and young people ​ points to clear and consistent opposition from young people to any greater access for the media to the Family Court. Professional organisations, ranging from the Association of Lawyers for Children, Resolution, and the National Association of Guardians ad Litem and Reporting Officers, to the Office of the Children’s Commissioner and the various medical Royal Colleges, have serious misgivings about the proposals for greater transparency, particularly given the continuing pressure from the media (including through the Society of Editors) to open up the family courts so that everything can be reported.

There are increasingly evident difficulties with the current arrangements, including the publication of judgments. Effective anonymisation is fiendishly difficult, requiring skill, attention to detail, and time, to ensure there is no risk of ‘jigsaw’ identification (i.e. piecing together separate bits of information that, taken together, make it possible to identify individuals). 

It remains far from clear why all judgments are to be published, irrespective of their importance. Arguably, unless there is some novel point of law, and/or the details of the case are already in the public domain, the public interest is not served by publication, particularly if the necessary anonymisation would make it difficult to render the judgment intelligible to an outside reader.

In the Gallagher v Appleton case, if Ms Appleton’s counsel is correct, and theirs is a straightforward case of ‘sharing…[and]…matrimonial assets’ with no special features (other than the parties’ celebrity), in which neither party has divulged the details of the case to the media, nor wishes to, why, indeed, should they not be protected from the publication of  those details ? Just because the public may be interested in the case (and it might sell a few more newspapers or result in a few more hits on websites), it does not mean that press reporting of the details would be in the public interest.

We do not know if or how Wellington’s children, Arthur (17 at the time of publication) or Charles (16), were affected by Harriette Wilson’s memoirs of their father.  However, the law has moved on since 1824, and with it our knowledge and understanding of the damaging effects on children and their parents of unwanted publicity.  Rather than publish and be damned, let’s hope that Liam Gallagher, Nicole Appleton, and their children, are allowed to keep at least part of their private lives just that – private.