Jigsaw ID revisited: the latest guidance from the High Court
24/05/2022
Last week, the Attorney General obtained an injunction against the BBC which prevented the broadcaster from identifying an MI5 source, Mr. X, who allegedly has been guilty of domestic violence for some considerable time.
The decision of Mr Justice Chamberlain not to allow Mr. X to be identified attracted a good deal of comment and publicity, not least from the BBC itself.
But for working journalists who frequently have to avoid identifying individuals, for example children, the victims of sexual offences, or those who are subject to Reporting Restrictions Orders made by a Court, Chamberlain J’s consideration of jigsaw identification is the really interesting section of his judgment. He has provided journalists with a useful reminder of the law on this particularly tricky issue.
The Attorney General applied for the injunction to prevent prejudice to national security. As a consequence, the process involved what the judge described as OPEN and CLOSED hearings, with the BBC and its lawyers being excluded from the latter. Consequently, only part of the judgment has been made public.
In the judgement that has now been published, Chamberlain J. began by pointing out that in most cases where there is a prohibition on disclosing someone’s identity, the restriction is framed in general terms. To illustrate the point, he referred to section 1 of the Sexual Offences (Amendment) Act 1992 which prevents publication of information “if it is likely to lead members of the public to identify” a person as a victim of certain sexual offences.
This means, for the most part, that the question of whether publication of particular information would be “likely to lead to” someone’s identity being revealed is left to the judgement of the media. As the judge recognised, “it would be impossible, and undesirable, for the court to seek to define in advance the precise parameters of every possible story”.
Which brings us to jigsaw identification.
Having confirmed that “likely to lead to identification” is the correct legal test to apply, Chamberlain J. then said this:
The phrase “likely to lead to” has been held to refer not to a statistical probability, but to “the real risk, the real danger, the real chance” that the individual will be identified.
…
The court must be alert to the possibility of “jigsaw” identification. One piece of information may on its own seem innocuous, but when taken together with other information known to a particular malign actor, it may lead to the identification of an individual ……. But, although the court must be alive to the threat of jigsaw identification, it must also be astute not to allow the threat to justify a blanket prohibition on disclosure of any piece of the jigsaw
So that's pretty clear. In deciding whether piece identify someone who has the right to anonymity, we must consider the possibility of jigsaw identification without falling into the trap of concluding that no part of the jigsaw can be published. It's a question of balance.
And to emphasise this particular point, Chamberlain J. quoted from a Family Court case decided in 2020, in which the Family judge said: “while some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote.”
Although the decision in Attorney General v. BBC was very much concerned with protecting national security, the more general guidance we have been given is applicable on a daily basis.
In short, everyone involved in reporting events or court cases where identification of certain individuals is prohibited, whether they are editors, news editors, subs, or reporters, would do well to apply their minds to this one simple test: does the story create “the real risk, the real danger, the real chance” of identification occurring?
Bearing in mind that getting this wrong could result in a prosecution and criminal conviction for the author, the editor, and/or the publisher, this analysis of the relevant law from the High Court is both welcome and helpful.