Anonymity

In a recent judgment, the Supreme Court of the Netherlands held against “The Board of the District Court of [A]”. I would humbly submit that that was taking anonymisation several steps too far.

Discussing the question of anonymity in court documents with my friends on the Volokh Conspiracy, I have generally defended the way the balance is struck in the Netherlands between privacy and transparency. Free speech is not an issue: there is no law forbidding anyone from publishing the names of people convicted of a crime. There is merely an agreed upon custom among the press that people’s surnames are not mentioned. Courts, in their judgments, also don’t mention the names of the individuals before them – although they do mention company plaintiffs and defendants by name – but that is not a free speech problem. Free speech does not require that the government give you information to talk about.

So that leaves transparency. The logic here is essentially the same as for Access to Documents legislation. As the EU legislature put it in recital 2 of Regulation 1049/2001:

Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.

Specifically in the context of court judgments, it is claimed that transparency allows citizens to know which of their fellow citizens have done wrong, and that it allows them to scrutinise the work of the court better. Against this we put the privacy rights of criminals, and more generally of parties to litigation. We have abolished the pillory as a form of punishment, and it does not do to recreate it in the press.

Based on these considerations, I have generally argued that the right balance is struck by giving the press and the general public free access to the court room – absent special considerations requiring confidentiality of proceedings – and thus allowing them to see and report trials in a non-anonymous way. If the public interest requires that the names of litigants are reported, the press will know these names, and will be free to make that decision, but I can’t just Google my neighbour to see if he’s ever been convicted of anything just because I’m nosy.

The reason why I was thinking of this is the rather curious case of Karel Knip. (His alleged misconduct is at several removes from the case I’m interested in, so there’s no reason not to mention his name.) Karel Knip wrote about the Trafigura case, and did so in a way that noticeably favoured the company in the middle of what was generally highly bad press. While this might lead the neutral observer to question his integrity, the District Court in Amsterdam, in handing down its judgment in the Trafigura case, went well beyond that and took the highly unusual step of mentioning this journalist – who, mind, was not a party to the case – in its judgment. They wrote:

6.10. (...) Trafigura toont daarmee dat zij geen enkel vertrouwen heeft in de rol van de media en de oprechtheid van de journalisten, zij het dat zij één uitzondering maakt en dat is voor de journalist [naam 46]. Hij is de enige die het begrijpt en die - naar de rechtbank moet aannemen met behulp van informatie van Trafigura - tijdens deze strafzaak en nà het pleidooi van Trafigura nog eens komt met een artikel waarin de relatieve onschuld van de slops wordt beschreven.

My translation:

6.10. (…) Trafigura shows in this way that it has no confidence whatsoever in the role of the media and the sincerity of journalists, be it that it makes one exception, for the journalist [name 46]. He is the only one who understands and who – as the court is supposed to assume with the aid of information provided by Trafigura – during this criminal trial and after the concluding remarks of Trafigura brings an article that describes the relative innocence of the slops in question.

(The brackets are the court’s, of course. A slop is technical jargon for a chemical spill.)

The daily newspaper Trouw noticed this, and reported about what the court had said. Paraphrasing the judgment, the newspaper said that the court had questioned Mr. Knip’s integrity. Predictably, he did not like this characterisation, so he took action against the paper before the Press Council, an independent body tasked by the Dutch press with enforcing journalistic best practice. (Note that it is emphatically not a public law body. Even in the Netherlands we like to avoid litigating press stories.)

This is where we get to the second unusual event in this saga. The Council, in examining the complaint, got in touch with the court, asking it whether the newspaper’s interpretation of the judgment was correct. The clerk of the court answered that it was a reasonable interpretation. Upon receiving this answer, Mr. Knip abandoned his case before the Press Council.

He did wonder, as well he might, why on earth the clerk of the court replied to this question. So he made a complaint with the President of the District Court, who backed the clerk, and with the Council for the Judiciary, the governing body of the Dutch court system. The latter replied that this was not a question of judicial misconduct, but one of alleged misconduct in the management of the courts, and therefore someone else’s problem.

Given that this is not a very satisfactory answer, Mr. Knip decided to bring out the big guns by bringing a complaint under art. 13a of the Judiciary Act (Wet op de Rechterlijke Organisatie), a new procedure that was only created in 2011. This involves asking the Procureur-General at the Supreme Court, a magistrate whose independence is guaranteed in the same way as the independence of judges, and whose job includes, in theory, bringing prosecutions against members of the government for abuse of office, to petition the Supreme Court asking that Court to investigate the matter. (Since there has never been a prosecution against a Minister, the Procureur-General normally spends his days as the boss of the Advocates-General at the Supreme Court, joining them in advising the Supreme Court about the best resolution of the cases before it.)

The Procureur-General granted the request and brought his petition, and the Supreme Court heard the Amsterdam court at a hearing in January. (This being a civil law country, there were no spectacular Law & Order theatrics. Instead, the Amsterdam court made a statement via counsel, and Mr. Knip declined to make an appearance.)

Last month, the Supreme Court handed down its judgment in this case, and it was a doozy. The Amsterdam court was reprimanded severely for having allowed the clerk to respond to the Press Council’s question, and for supporting the clerk’s decision afterwards. Judges speak through their judgments, and if any commentary is necessary there is a judge-spokesperson for every court. And the Supreme Court stressed that even that person, who is himself a judge, should be careful not to create the impression that his statements are in any way authoritative. The way the Amsterdam District Court handled this matter could not have been more wrong.

There is just one odd thing about the Supreme Court’s judgment. At the top, it is styled: “Judgment in the matter of the complaint brought by [complainant] against the Board of the District Court of [A]”, and that same style is maintained throughout. The fact that Mr. Knip’s name was removed is entirely normal, and in line with Dutch court practice. The fact that the reference to Amsterdam was also removed is less normal, and also much less defensible. Not only would the custom with regard to companies suggest differently, but so would the underlying first principles. If ever there is a strong case for transparency, it is when the judiciary is trying to clean its own house.

As it happens, there is only one District Court that starts with an A, making this case of anonymisation particularly silly. (There used to be more, but several District Courts were merged in recent years.) While the board of the court is strictly speaking a group of individuals, the same goes for the board of a corporation, such as the board of Trafigura who ended up with their company name printed for all to see in the jurisprudence. As long as the judges in question don’t end up with their names printed in the judgment, I don’t see how the normal rules for anonymisation require that the name of the court be removed from the judgment.

Even if, applying the normal rules, one were to say that this is a borderline case, surely the public interest in observing how the judiciary polices itself is greater than the public interest in transparency normally would be? In other words, the Supreme Court should have erred on the side of naming the board of the Amsterdam District Court.

In order to remedy that omission, I will take the liberty of naming the current members of the board. Board members for courts are appointed for six year terms, so I cannot be sure that these judges were already on the board at the relevant time, but it will have to do. They are:

• Mrs. C.T.E. Eradus, President of the Court and chairwoman of the Board;
• Mrs. E. de Rooij, judge-member.
• Mr. Hans Janssen, non-judge member appointed as of 1 April 2013.

This blog post is based on this Dutch-language story by Hugo Arlman on NJBlog.nl. The opinions expressed here are, of course, my own.