Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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The Court of Appeal, Civil Division, ruled against imposing a publication ban on the judgments and case proceedings involving the ruler of Dubai and his wife, finding that publicity was “a necessary step in order to meet the private and family life needs of the mother and the children.” The case concerned Princess Haya who fled with her two children from her husband Sheikh Mohammed, the ruler of Dubai, to the UK. Family proceedings in the UK are generally private, but Princess Haya and representatives of British media sought to lift publication restrictions citing public interest and a need to counter the defamatory and harmful media narrative orchestrated by the Sheikh against the Princess. A family court agreed that there existed domestic and international public interest in the case and that media coverage of the hearing offered a counterbalance to the damaging narrative orchestrated by the Sheikh. The Court of Appeal fully endorsed the lower instance judgment, adding that not publishing information on the family proceedings did nothing but continue the “highly negative and harmful experience of living in circumstances in which all those with whom they have contact are likely to have been influenced by a largely false account of the mother’s actions.”
In May 2019, Sheikh Mohammed bin Rashid Al Maktoum, the ruler of the United Arab Emirates, applied to the Appellate Court for the return of his two youngest children, Sheikha Al Jalila bint Mohammed bin Rashid Al Maktoum (Jalila 12-years-old) and Sheikh Zayed bin Mohammed bin Rashid Al Maktoum (Zayed 8-years-old). The children had been brought to England by their mother, Her Royal Highness Princess Haya bint al Hussein, the daughter of the late King Hussein of Jordan, in April 2019, and who shortly after made it clear that she did not intend to return to Dubai.
The Sheikh first sought the children’s return to Dubai, but eventually accepted that they should remain in the UK. However, he then began legal proceedings to ensure a guarantee of regular contact with them. In December 2019, a family court issued a fact-finding judgment concerning allegations of the Sheikh’s past involvement in abduction and intimidation of his elder children and Princess Haya. Specifically, it was held that as early as the year 2000, Sheikh Mohammed ordered the abduction of his daughter Shamsa from the UK to Dubai. Further, on “two occasions in June 2002 and February 2018, [Sheikh Mohammed] ordered and orchestrated the forcible return of his daughter Latifa to the family home in Dubai. In 2002 the return was from the border of Dubai with Oman, and in 2018 it was by an armed commando assault at sea near the coast of India.” [para. 12] Upon return, the daughters were deprived of their liberty. Moreover, the family court found that since the beginning of 2019, the Sheikh led a campaign of harassment and intimidation against Princess Haya.
In January 2020, the family court issued another judgment that in part touched on the Princess’s fear that the children might be abducted. These court proceedings have been conducted in private although accredited British media representatives were allowed to attend. However, the media had to abide by strict reporting restrictions and was not allowed to report on the judgments or the hearings that took place.
A number of media organizations appealed to the court to release them from the reporting restrictions. On January 27, a court allowed the media to report on the judgments and the journalists who attended the hearings to publicize what they observed. Prohibitions on reporting the names, ages and genders of the two children were lifted. The media was still forbidden from publishing the children’s domicile and place of education, as well as their photos.
To summarize the family court’s judgments, it was held that there was an important public interest in the information concerning the Sheikh’s conduct as illustrated by wide press coverage of the story in the UK and internationally. Some of this coverage was admitted into evidence that formed part of the judgment. However, there had not been an independent inquiry into the allegations brought by Princess Haya and the Sheikh’s account was never heard. The family court also agreed that the Sheikh orchestrated a media war against the Princess. For example, in June and July 2019, over a thousand defamatory articles were published about her internationally which sought to create a false media narrative about why she fled Dubai. The Court described them as “wholly inaccurate,” “hostile stories aimed at destabilising and harming her.” [para. 16]
The family court established that the Children Act of 1989 gave it the authority to assess and, if needed, lift publication restrictions. The Human Rights Act of 1998, which gave effect to the European Convention on Human Rights in the UK, establishes in paragraph 25 that a court must balance rights to privacy and family life (Article 8 of the ECHR) and freedom of expression (Article 10 of the ECHR). The Court applied the “S balancing exercise” from Re S (Identification: Restrictions on publication)  UKHL 47,  1 AC 593 and noted that when conducting the balancing, it had to measure how a child was impacted, and “indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations.” (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166) [para. 25] However, this balancing “is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in terms of proportionality is carried out.” [para. 26] Further, the court noted that although much personal information about the Sheikh and the Princess was already in the public domain, the fact that confidentiality has already been breached, did not justify further intrusion.
On the bases of the above, the restrictions had been lifted and the Sheikh appealed. He argued that the children would be harmed by the ensuing media frenzy. They added that the publications undermined the possibility of restoring contact between them and the father. He did not challenge Article 10 (freedom of expression) justifications for lifting the restrictions.
Media representatives argued that the restrictions on publications had to be lifted under Article 10 and for the pursuit of public interest. A lawyer for the Guardian argued that the publications helped establish a narrative of the family’s history and life story. The Princess’s lawyer supported the lifting of the restrictions because it helped counter the negative narratives widely propagated by the Sheikh.
The Appellate Court began by outlining the family court’s reasoning in favor of the lifting the publication ban. First, the family court found that Article 10 of the European Court of Human Rights strongly supported the media’s right to publish because of the strong public interest in the Sheikh’s conduct. When reviewing the right to privacy under Article 8 of the ECHR, the family court considered the rights of both the Sheikh and the children. The family court agreed with the Guardian’s argument that the publications had a substantial benefit to the children and the mother by countering the damaging narrative orchestrated by the Sheikh. The court however stressed that this was an unusual situation, where Article 8 and Article 10 considerations, rather than conflicting, “pointed in the same direction” [para. 38] and hence publicity was a “necessary step in order to meet the private and family life needs of the mother and the children.” [para. 36]
The family court also noted that the Article 10 analysis, not challenged by the Sheikh, went beyond the private interests of the family and included “matters of genuine international public interest.” The court added that the publications were even desirable as they countered the Sheikh’s damaging press attacks. In fact, the court stressed that doing nothing or postponing publications would allow “for the continuation of the highly negative and harmful experience of living in circumstances in which all those with whom they have contact are likely to have been influenced by a largely false account of the mother’s actions.” [para. 39]
The Appellate Court then proceeded to review the Sheikh’s ground for appeal individually, dismissing them all. The Sheikh appealed the family court’s decision on three grounds: prematurity, error in striking the balance between freedom of expression and privacy, and an amended argument around the claim that the family court failed to consider the paramount interest of the children.
First, he argued that lifting the publication restrictions was premature, specifically that the family court failed to review all the evidence before it. The Appellate Court disagreed. It concluded that the family court had all the information necessary to issue the lifting of the publication restriction. Furthermore, the family court was correct in concluding that the publication was inevitable and delaying it served no benefit to the welfare of the children.
The Sheikh also argued that there was no urgent public interest in the publications as Princess Haya was not in any real or immediate risk of physical danger. The Appellate Court disagreed and gave little justification, bar stating that it found no error in the family court’s determination of urgency due to the unknown status of the Sheikh’s elder daughters.
The third argument made by the Sheikh was that the claim that the publication would have a corrective effect or would put the record straight was false. The public would never read the family court’s judgments and any correction would be lost in the “media noise” created solely for keeping the story alive. He added that “any notion of responsible reporting was… idealistic and unrealistic and, in any event, any responsible reporting that there may be would be drowned out by more colorful and irresponsible accounts.” [para. 61] Once again, the Appellate Court disagreed with the Sheikh’s reasoning.
The Appellate Court found that the family court was acutely aware of the media storm surrounding the story, but this media publicity was in fact necessary to protect the Princess and her two children. Publications about and based on the family court’s judgments concerning the facts of the case reversed the negative narrative orchestrated by the Sheikh. Accordingly, they possessed “considerable value in altering the attitudes of those friends and family who have been influenced by that narrative into so hurtfully withdrawing their support and company from the mother and children.” [para. 62]
The Sheikh also argued that since he did not participate in the hearings, the family court’s judgment did not present a full and factual picture. The Appellate Court dismissed this line of reasoning. It noted that the Sheikh chose not to participate in the hearings and had full opportunity to present his side of the story through lawyers. Further, the Sheikh’s claim that he chose not to participate in the hearings due to worries over invasion of privacy fell on deaf ears. The Appellate Court noted that this was “an intrusion suffered by every litigant in such finding of fact hearings, be they prince or pauper.” [para. 66] Despite the Sheikh not participating the trial, the family court scrupulously reviewed the evidence.
Error in Striking the Balance
The Appellate Court explained that the Sheikh’s representatives failed to make oral arguments specific to the claim that the family court committed an error in striking the balance between privacy and freedom of expression. Further, the majority of the points in the pleading were similar to those made above.
Application to Amend
The Sheikh submitted a third argument, which was not the subject of the appeal, that the family court failed to treat the welfare of the children as the paramount and determinative consideration. The Appellate Court noted that the Sheikh’s new argument was a striking departure from how the case was argued in family court, but nonetheless allowed it to be heard de bene esse or without prejudice. The Appellate Court, citing precedent, explained that the best interest of the child is a primary consideration when assessing whether a publication should proceed. However, a primary consideration is not the primary or the paramount consideration. The Appellate Court held that even if the family court applied the “paramountcy test” the ultimate conclusion that the publication was in the interests of the children as well as the public interest would not change.
For the all then reasons summarize above, the Appellate Court dismissed the Sheikh’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is “extraordinary, not only in its implications for the futures of both parties and their families but for its novel application of the law surrounding the identification of children in family proceedings, the law of privacy and the evolving judicial approach to publicity in the family court.” Furthermore, the judgment highlighted the positive role that fact-based reporting can play in countering defamation and protecting women and their voices against individuals with great resources.
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