Open discussion timely on court gag orders, 12 Apr 2012
Author K C Vijayan
The subject of court- authorised gag orders was in the news last month when former company director Anthony Aurol was found guilty of contempt of court for sending a journalist legal documents that had been sealed.
If a case or matters relating to it are under a 'seal' order, it means no one can have access to the documents without the court's approval.
The gag order can apply to aspects of a case, or the entire case.
Recent anecdoctal evidence suggests that more parties with cases before the courts are applying for gag orders for various reasons.
Three in point are: X v Dr Christine Cheng, OpenNet v Infocomm Development Authority and Khoo Bee Lian v Khoo Bee See.
As they are gagged, the media and the public must remain clueless about what they concern, aside from noting the parties involved.
It is interesting that even the plaintiff's name in the first case has been made anonymous, something rarely seen outside of the Family Court or juvenile cases.
All we know about the second case is that it involves a suit by a heavyweight online service provider against a statutory body. OpenNet is the builder of Singapore's first ultra-fast fibre broadband network and is a consortium of Axia NetMedia, SingTel, SP Telecommunications and Singapore Press Holdings.
The Khoos in the third case appear to be two children of the late billionaire banker and philanthropist Khoo Teck Puat, who died in 2004.
Unless the gag orders are lifted, this may be all that we will ever know about these three cases.
Asked about the reasons for the gag orders in these three cases, a Supreme court spokesman said: 'The Court may make an order restricting or prohibiting access to a case file upon an application of any of the parties to an action.
'It is for the applicant party to provide reasons to justify their application and to satisfy the Court that their application should be granted.'
Any request to inspect a case file may be denied, the spokesman added, depending on the facts of the case and the circumstances of the parties or for either reason.
'For example, where the situation calls for preservation of confidential information (such as trade secrets) and/or privacy to avoid losses and/or unnecessary hardship.'
So the three cases have been restricted because their nature fell into such circumstances.
The reasons for sealing court files can vary from case to case, but one needs to ask how the public interest is preserved in all of this.
One needs to ask whether ideally the need for public information can be addressed without compromising the reasons behind the sealing of files.
Is it possible, for example, to order a seal on a particular document that is considered highly sensitive and confidential, rather than declare the entire file off-limits?
A High Court judgment last year in the case of AAY and others v AAZ, which involved review of an arbitration matter by Justice Chan Seng Onn, suggests the courts are inclined towards such a stance, if appropriate.
An English appeals judge, Sir Christopher Staughton, remarked in a 1998 British case that it is important not to forget why court proceedings are required to be subjected to the full glare of a public hearing.
Among other things, he said, it makes uninformed and inaccurate comment about the proceedings less likely.
'If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve,' he added.
There appears to be no local case triggered by a third party challenge to a gag order, thereby enabling the courts to make clear its perspective or policy to show if this area of the law has moved forward.
And where there are no such grounds, there can be a tendency for perceptions to flood in about possible reasons, ungrounded or otherwise.
Indeed, there is no way for the public to know how many files have been sealed, or on what grounds.
The underlying principles for imposing a gag order or declaring secret the names of parties involved in a court case are the same as those relevant to decisions to hold a hearing in camera - behind closed doors. Such a hearing can be in the interests of justice, public safety, public security or propriety, or for other sufficient reason, as stated under Section 8 of the Supreme Court of Judicature Act.
The courts here, as well as in England and other Commonwealth countries, generally lay great stress on 'open justice' as publicity is part of the procedural fairness which ensures that justice is not only done, but manifestly and undoubtedly seen to be done.
But inroads have been made into this concept on various grounds, such as for protecting trade secrets, price-sensitive information to securities traded on a stock exchange or national security issues.
Lawyers say the issue involves a balancing act.
They point out that in criminal cases, the public interest is at a premium as there is no case for non-disclosure except on rare grounds such as national security.
In civil cases, secret proceedings or gag orders are provided for under the law in certain cases. For instance, provisions under the Banking Act, Insurance Act and Women's Charter allow for proceedings to be held in camera under certain circumstances.
But in other civil cases, the courts will consider the merits of the gag application and in some categories, such as road accident cases, there can be no justification for issuing a gag order.
In other cases of patients against doctors or hospitals, a gag order may be set on the settlement details, but the content of the cases themselves is mostly reported.
However, in the three sealed cases cited above, only the parties' names are known - except for the case in which the plaintiff succeeded in being kept secret - and nothing else is known.
What is to be said about that kind of secrecy?
On the one hand, parties are keen to seal files to ensure confidentiality, especially in the case of professionals who do not wish to see their business tarred by lurid details of litigation.
But where there is mutual consent to seal the files, there is also the public interest to know the outcome, or at least that it has been resolved.
While the judge hearing the case is expected to consider the public interest, lawyers say, the absence of a third voice to address concerns suggests a potential imbalance in that the public's right to know is subject to the parties wishes.
To be sure, the courts have refused gag-order applications before, giving due weight to concerns voiced against doing so.
In a 2010 case, a defendant health products firm sought a gag order on the grounds that there would be public anxiety if the proceedings - which involved a serious allegation about a product - were made public.
But the plaintiff's lawyers objected. It would be arguable if the outcome might have been different had they agreed to the firm's move.
According to a Straits Times report at the time, Baxter Healthcare (Asia) was faced with claims that one of its earlier dialysis machines had been defective. It had been taken to court then as a third party to a suit brought against a hospital by the family of a 58-year-old kidney patient.
Elsewhere, such as in Britain and Canada, the media has stepped in to challenge the sealing of files and seek clarity on the right to know.
Earlier this month, three Appeals Court judges in England issued a landmark ruling that enhanced the media's right to inspect documents used in a court case.
In the case brought by the Guardian newspaper for the right to inspect documents in relation to an extradition case, Lord Justice Roger Toulson said the decision 'breaks new ground in the application of the principle of open justice'.
British media reported last week that British MP John Hemming was launching an inquiry into excessive court secrecy amid concerns about the emergence of a super-gag order - meaning where a high-profile public figure or celebrity goes to court to get an order to stop the media from disclosing information about their personal lives, such as extra-marital affairs.
The Guardian reported a growing concern over the use of gagging orders in British courts.
'It is not known precisely how many super-injunctions have been issued, but an informed legal estimate is that as many as 20 have been granted in Britain over the last 18 months,' it said.
While circumstances and context here may be vastly different from there, the concerns cannot be dissimilar.
It is arguable whether a public- minded body like the Law Society, assuming it has the locus standi, might take up an appropriate gag-order case in the public interest and contest its validity.
It could seek a clarification on constitutional or common law grounds, if any, rather than on the circumstances of the two opposing parties in the case and invite the court to shed more light on its thinking in this area.
Sealed information unlocked
Ryan Giggs
Manchester United star Ryan Giggs (right) had in place a London court's gag order last April forbidding the media from naming him as the person who had an alleged relationship with former reality television star Imogen Thomas.
In May, a British court refused permission for a journalist to name Giggs, but a problem arose as Giggs had already been named online by more then 70,000 Twitter users. Giggs threatened to sue Twitter to name the source, but the story took a twist when British MP John Hemming named him in Parliament.
Mr Hemming used his parliamentary privilege to disclose that Giggs had obtained the gag order. The case underlined the growing challenge in enforcing a gag order, given the speed with which social media can spread the word.
The Guardian
The London-based Guardian newspaper sought in 2010 to obtain documents used by prosecutors in open court to support the extradition of two Britons to the United States.
The documents were not read out but had been referred to in open court during the hearings and the newspaper wanted access to ensure accurate and full reporting. The UK High Court last year refused the newspaper's application, but the three-judge Court of Appeal this month overruled the decision and, in a ground-breaking move, ordered the release of the documents to the media.
Appeals judge Roger Toulson said that the courts should assist rather than impede the media when reporters sought copies of documents used in criminal cases.
He made clear the 'open justice principle', under which the case was decided, is a constitutional principle to be found not in a written text but in the common law. 'It is for the courts to determine its requirements, subject to any statutory provision.'
Jeremy Clarkson
In an unusual move last October, high-profile BBC presenter Jeremy Clarkson withdrew a gag order he had obtained in court a year earlier that stopped the media from reporting a claim by his first wife that he had had an affair with her after he married his current wife.
Explaining his U-turn, the host of the Top Gear show said that such gag orders did not work in a 'legal-free world on Twitter and the Internet'.
