Anonymous judgments under pressure

As a general rule, court judgments and decisions in Norway are public. However, pursuant to Section 130 of the Courts of Justice Act, courts may order anonymization where decisions contain particularly sensitive personal information. In cases under the Marriage Act, the requirement for anonymity is absolute according to the wording of the third paragraph of the provision.

This issue arose last year in a high-profile inheritance dispute. The case concerned a conflict between the children of a well-known financier and his surviving spouse, involving substantial assets. 

The District Court upheld the spouse's claim that several wills, marital agreements and a financial transfer were valid. However, it imposed restrictions on particularly sensitive details related to the deceased’s health and alcohol problems. 

The Court of Appeal reversed the outcome. The children prevailed, but the court ordered that the case could only be reported publicly in anonymized form, without providing further reasoning. As a result, neither the press nor the deceased’s children were permitted to speak publicly about the case.

The newspaper Dagens Næringsliv (DN) asked the Court of Appeal to reverse this decision, but was unsuccessful. The newspaper appealed the case to the Norwegian Supreme Court on the grounds that the decision to anonymise was a disproportionate interference with the freedom of expression and information.

The Supreme Court's Appeals Committee held that the Court of Appeal's decision on anonymisation was an interference with the freedom of expression and information under Article 10(1) of the European Convention on Human Rights (ECHR). The Court of Appeal had failed to conduct any assessment under Article 10(2) of the ECHR. This constituted an error in the interpretation of the law, and the decision was therefore overturned. The Court of Appeal was also ordered to pay DN's legal costs.

• The interests of freedom of expression and information must be balanced against the need to protect the reputation and private life of those involved. The balancing must be specific. The protection of reputation and private life considerations will often carry less weight the person concerned has died, the Norwegian Supreme Court Appeals Committee wrote.
   

The Court of Appeal subsequently issued a new decision, again refusing the request for reconsideration. Upon reconsideration, the Court of Appeal found that anonymisation did not constitute a disproportionate interference with freedom of expression and information.

Dagens Næringsliv (DN) appealed this new decision to the Norwegian Supreme Court as well, and once again prevailed, with full recovery of legal costs.

The Appeals Committee did not constitute a disproportionate interference with freedom of expression and information, and the Court of Appeal's decision was overturned. The Appeals Committee emphasised that the District Court's judgment had already been reported in the press without anonymisation, and that the protection of the privacy and reputation of those involved could be safeguarded by more limited prohibitions or restrictions. 

The Appeals Committee also recognised the important social role of the press when reporting on specific cases. It noted that an order requiring complete anonymity makes it difficult for the press to provide adequate account that the parties who did not prevail in the District Court ultimately succeeded in the Court of Appeal. Contrary to the Court of Appeal, however, the Committee did not consider this a consequence without “significant importance” for the press’s ability to perform its societal role:

• It lies at the core of the press' role to shed light on current social issues through coverage of current affairs. This must apply even if the newspaper's stated purpose in reporting on the matter, according to the information provided, is to focus more generally on conflicts related to lifetime and testamentary dispositions among family members of wealthy individuals.
   

The case was then returned to the Court of Appeal.

Dagens Næringsliv (DN) argued that the anonymisation of the deceased could not be maintained and requested that the judgment be made publicly available without restrictions. The deceased's children supported DN's request and likewise wanted the judgment to be published without restrictions.

The Court of Appeal concluded that, based on the Appeals Committee's reasoning, there could be no basis for maintaining full anonymity under Section 130(3) of the Courts of Justice Act. Its previous decision therefore had to be overturned.

Although the judgment contained extensive descriptions of highly personal matters, including the deceased's alcohol abuse, medical history and diagnoses, these matters were already widely known and had been discussed publicly in the past. It was also relevant that several years had passed since the death and that the deceased’s children did not seek any restrictions on public disclosure.

The case means that both Norwegian judges and editors must rethink their approach to anonymisation. Even where a prohibition appears absolute, the issue must be assessed in light of the fundamental principles of freedom of expression under Article 10 of the ECHR.

It may also no longer be tenable to maintain the practice of ordering anonymization without providing further justification. In its latest ruling, the Court of Appeal notes that it is "unclear" whether the Supreme Court Appeals Committee intended that courts should always consider whether the need for protection could be satisfied by less intrusive measures than full anonymization in cases between spouses The Court of Appeal assumes that this was not intended, and that these such cases, as a general rule, should still only be reported in anonymised form without requiring further assessment.

• Only in exceptional cases may it be necessary to assess whether anonymisation would conflict with Article 10 of the ECHR – typically in cases where the press raises the issue, the Court of Appeal stated.
   

It is doubtful whether the Court of Appeal has sufficient basis for such a limitation. An obvious and simple solution would be for judges to include a brief justification for anonymization at the end of the judgment. For their part, the media should be aware that anonymisation orders under Section 130(3) of the Courts of Justice Act can no longer be considered absolute, and that such decisions may be challenged. 
 

Halvard Helle represented Dagens Næringsliv in the two Supreme Court decisions.