Anonymous Court Proceedings, The Time Is Now

In this article, Ogbonna Ckuwumerije of
Pinheiro LP examines the operation of anonymisation
of court proceedings in the United States and European Union as
well as the need for a review of the rules of our various Courts in
Nigeria.
1.0. Introduction:

The openness of judicial proceedings is a fundamental principle
enshrined in Section 36 of the 1999 Constitution (the right to a
fair trial). This underpins the requirement for a claimant,
defendant and witness to be identifiable not only to the parties in
the suit but also to the open court. It supports the ability of the
defendant to present his case and to test the prosecution or
claimant’s case by cross-examination of the witnesses.

The principle of open justice can sometimes act as a bar to
criminal prosecutions particularly in rape, homicides and other
organized crimes. Witnesses may be apprehensive of the fact that in
the event that their identities are disclosed to the Defendant, the
Defendant’s associates or the public in general, then they, their
families or friends will be at risk of serious harm. The risk
present in the open justice principle extends to civil matters,
particularly cases bordering on divorce, medical status or mental
health where the disclosure of the name of the parties can lead to
the possibility of them being ridiculed, mocked and or derided by
the public.

Recognising this, Section 36(4) (b) of the Constitution of the
Federal Republic of Nigeria ’99 makes exceptions to open justice
system where the court or tribunal is satisfied that it would not
be in the interest of the public for any matter to be publicly
disclosed. This position has been supported by recent enactments,
however, the Nigerian approach leaves more to be desired. The
recent enactments made by the National Assembly failed to make
provisions for the possibility of commencing a suit in a pseudo
name and/ or anonymously in deserving cases as is being done in
other jurisdictions.

The concept of anonymity of court
proceedings:

Anonymity in court proceedings goes with privacy or secrecy in
proceedings. It is a means of balancing the right of a person to
privacy with the justice principle of fair hearing.

Where a person considers it pertinent that certain personal data
relating to him or her should not be disclosed in published
material relating to a case brought before the Court, such person
may apply to the court that he or she be granted anonymity in the
context of that case. Anonymity can be in form of private
proceedings, use of initials instead of the full names of the party
seeking privacy. An essential consideration in favour of
non-disclosure is the desire to have cases heard on their merits
and that litigants should not be hindered by fear, ridicule,
derision or shame. The reality is that many persons will rather
forgo the vindication of their rights than have details of their
private lives and personal medical facts open to public
scrutiny.

2.0. Scope of anonymity in the Nigerian legal
system

Section 36(4) (b) of the Constitution of the Federal Republic of
Nigeria 1999 provides that where the court or tribunal is satisfied
that it would not be in the public interest for any matter to be
publicly disclosed, such matters can be held privately.

Non-disclosure of sensitive data of victims of certain offences
and or witnesses in certain proceedings has been recognised by
Section 232 of the Administration of Criminal Justice Act, 2015
which relates to criminal proceedings, specifically sexual
offences, terrorism, trafficking and economic and financial crimes.
Also, the practice of anonymising the full names of witnesses in
Statements on Oaths to be used as evidence at the trial of election
matters/petitions in Nigeria, usually to protect their identity,
has become accepted and established by the Election petition
Tribunals and endorsed by the appellate Courts. See Joseph v.
Labour Party (2015) LPELR-42145 (CA), Orji & Anor v. INEC & Ors
(2020) LPELR-49525(CA).

However, there are no provisions for other sensitive matters
like medical status, mental health and divorce proceedings which
sometimes involve facts which the petitioner may be unwilling to
disclose to the public due to the reputational damage and possible
societal stigma that may follow. More importantly, there are no
provisions for the anonymization of the names of the person and/ or
parties intending to commence the action and the need to conceal
their identities and/ or sensitive data when judgment is being
delivered and/or published.

It is important to state that Section 36(3) of the 1999
Constitution provides that the proceedings of a court or any
tribunal relating to the matters mentioned in subsection (1) of
this section (including the pronouncement of the decisions of the
court or tribunal) shall be held in public. Also, Section 294 of
the Constitution enjoins the Court to furnish each party with a
copy of the judgment upon the conclusion of proceedings. The import
of the above is that once a person is party to or witness in a
suit, sensitive or personal data relating to the person become
public knowledge, and in the language of the law, knowledge to the
whole world.

3.0. Comparative analysis of anonymization
provisions in Nigeria and other jurisdictions

3.1. The United States’ Anonymization
System:

The United States generally operates an open court system in
line with the principles of fair hearing. As a default, a fair
trial is an open trial. US Federal Rules of Civil Procedure, Rule
10(a), 2019 states that the title of the complaint must contain the
names of all the parties.

American Courts have made it clear that the right to an open
trial may give way in certain cases to other rights or interests
such as the defendant’s right to a fair trial. Therefore, litigants
are allowed to proceed anonymously or under a pseudonym in limited
circumstances when non-disclosure is necessary to “protect a person
from harassment, injury, ridicule or personal embarrassment.”

Rule 5.2., Federal Rules of Civil Procedure permits privacy
protection for filings made with the court pertaining to minors. It
states that: “Unless the court orders otherwise, in an electronic
or paper filing with the court that contains an individual’s social
security number, taxpayer-identification number, or birth date, the
name of an individual known to be a minor or a financial-account
number, a party or non-party making the filing may include only:
(1) the last four digits of the social-security number and taxpayer
identification number; (2) the year of the individual’s birth; (3)
the minor’s initials; and (4) the last four digits of the
financial-account number.”

3.1.1. Balancing the Right of Privacy with Public
Interest in the United States of America:

Some circuits have adopted a balancing test to determine the
specific circumstances that will warrant the grant of anonymity.
Some of these factors include;

.The severity of the threatened harm;

.The reasonableness of the anonymous party’s fears;

.The anonymous party’s vulnerability to such retaliation;

.The precise prejudice at each stage of the proceedings to the
opposing party, and whether the proceedings may be structured so as
to mitigate that prejudice; and

.Whether the public interest would be best served by requiring
that the litigants reveal their identities.”

(See Does I thru XII v. Advanced Textile Corp., 214 F.3d 1058,
1067-68 (9th Cir. 2000).

The first two factors are deemed the most important and are
generally considered together.

The possible argument that may erupt on the basis that court
proceedings and documents ought to be accessible to the public in
view of the vital role they play in the society can be rebutted by
demonstrating that the danger and/ or derision which the
Plaintiff/Claimant may likely face in the event that the suit is
not commenced anonymously exceeds public interest as explained in
some cases below.

In the case of Lauren B. v. Baxter International Inc. &
Subsidiaries Welfare Benefit Plan for Active Employees, 298 F.R.D.
571, 573 (N.D. Ill. 2014) which involved a claimant who was seeking
reimbursement for medical expenses relating to residential
treatment for an eating disorder (a serious mental health
condition), the court permitted the plaintiff to litigate under a
pseudonym. “In this instance,” the court explained, “that balancing
of harms favours Lauren’s opposition to the motion – there are
indeed ‘compelling reasons of personal privacy’ at issue. Lauren’s
response confirms that her severe mental illnesses, including but
not limited to the long-standing eating disorder from which she
suffers, create death risks and a threat to her recovery which
public disclosure would entail”. The above is truly the exceptional
case that rebuts the general presumption referred to earlier, in
view of the identified harm and risk of harm to Lauren that public
disclosure may cause.

Also, in Doe v. County of Cook, the Court held that in a few
cases, justified interest in privacy warrants non-disclosure of a
litigant’s name. Also, in Doe v. City of Chicago, 360 F.3d 667, 669
(7th Cir. 2004), the court held that judicial proceedings are
supposed to be open. The Court went further to hold that the
presumption that the parties’ identities are public information and
the possible prejudice to the opposing party from concealment can
be rebutted by showing that the harm to the plaintiff… exceeds the
likely harm from concealment”.

It is important to state that the Courts in America have also
refused to grant applications seeking to commence actions
anonymously in non-deserving cases. See the case of Doe v. Amazon,
2011 WL 13073281(W.D. Wash. 2011)where an actress sued Amazon
claiming that a database it owned, IMDB.com, improperly disclosed
her age and that if her age was known, she would become blacklisted
in the film industry. The court in its ruling against the actress
found that while embarrassment, ridicule and retaliation were
serious harms, the threat was insufficient to allow her to proceed
anonymously. See also A.G. v. Unum Life Insurance Company of
America, 2018 WL 903463 (D. Ore., Feb. 14, 2018).

The Position under the European Union:

The Court of Justice of the European Union ensures that when
acting in its judicial capacity, the principle of open courts and
public information is reconciled with the protection of personal
data of the persons mentioned in cases brought before it.

The court allows for a person to contact the Court of Justice
requesting the grant of anonymity where such a person considers it
necessary that certain personal data on him or her should not be
disclosed in published materials. However, for such a request to be
considered, it must be made at the earliest possible stage of the
proceedings.

Also, where anonymity has been granted by the referring court or
tribunal, the Court of Justice will respect that anonymity in the
preliminary ruling proceedings pending before it (Article 95 of the
Rules of Procedure of the Court of Justice). After the request for
a preliminary ruling has been lodged, the Court can also anonymize
the case of its own motion or at the request of the referring court
or tribunal or of a party to the main proceedings.

Where anonymity has been granted by the General Court in a case
against which an appeal has been brought before the Court of
Justice, the latter will as a rule respect that anonymity in the
proceedings pending before it. Article 190(3) of the Consolidated
Version of the Rules of Procedure of the Court of Justice 2012
provides for anonymization in appeal cases. At the duly reasoned
request of a party to the proceedings or of its own motion, the
Court may, if it considers it necessary, also replace the name of
one or more individuals mentioned in the context of the proceedings
with random initials.

Recommendations for the Nigerian System:

The civil procedure rules of the various courts in Nigeria need
to be reviewed to allow parties, in deserving cases, commence an
action in a pseudo name or anonymously. · Anonymity should be
granted by the court where the right to privacy outweighs public
interest and possible consequences of undisclosed identity. · In
line with European Union practise, a request for anonymity must be
made EXPARTE at the earliest possible stage of the proceedings.

Chukwumerije is a team lead at Pinheiro LP, his
core areas of practice and interests are Intellectual Property Law
and Technology Law.

In this article, Ogbonna Ckuwumerije of
Pinheiro LP examines the operation of anonymisation
of court proceedings in the United States and European Union as
well as the need for a review of the rules of our various Courts in
Nigeria.
1.0. Introduction:

The openness of judicial proceedings is a fundamental principle
enshrined in Section 36 of the 1999 Constitution (the right to a
fair trial). This underpins the requirement for a claimant,
defendant and witness to be identifiable not only to the parties in
the suit but also to the open court. It supports the ability of the
defendant to present his case and to test the prosecution or
claimant’s case by cross-examination of the witnesses.

The principle of open justice can sometimes act as a bar to
criminal prosecutions particularly in rape, homicides and other
organized crimes. Witnesses may be apprehensive of the fact that in
the event that their identities are disclosed to the Defendant, the
Defendant’s associates or the public in general, then they, their
families or friends will be at risk of serious harm. The risk
present in the open justice principle extends to civil matters,
particularly cases bordering on divorce, medical status or mental
health where the disclosure of the name of the parties can lead to
the possibility of them being ridiculed, mocked and or derided by
the public.

Recognising this, Section 36(4) (b) of the Constitution of the
Federal Republic of Nigeria ’99 makes exceptions to open justice
system where the court or tribunal is satisfied that it would not
be in the interest of the public for any matter to be publicly
disclosed. This position has been supported by recent enactments,
however, the Nigerian approach leaves more to be desired. The
recent enactments made by the National Assembly failed to make
provisions for the possibility of commencing a suit in a pseudo
name and/ or anonymously in deserving cases as is being done in
other jurisdictions.

The concept of anonymity of court
proceedings:

Anonymity in court proceedings goes with privacy or secrecy in
proceedings. It is a means of balancing the right of a person to
privacy with the justice principle of fair hearing.

Where a person considers it pertinent that certain personal data
relating to him or her should not be disclosed in published
material relating to a case brought before the Court, such person
may apply to the court that he or she be granted anonymity in the
context of that case. Anonymity can be in form of private
proceedings, use of initials instead of the full names of the party
seeking privacy. An essential consideration in favour of
non-disclosure is the desire to have cases heard on their merits
and that litigants should not be hindered by fear, ridicule,
derision or shame. The reality is that many persons will rather
forgo the vindication of their rights than have details of their
private lives and personal medical facts open to public
scrutiny.

2.0. Scope of anonymity in the Nigerian legal
system

Section 36(4) (b) of the Constitution of the Federal Republic of
Nigeria 1999 provides that where the court or tribunal is satisfied
that it would not be in the public interest for any matter to be
publicly disclosed, such matters can be held privately.

Non-disclosure of sensitive data of victims of certain offences
and or witnesses in certain proceedings has been recognised by
Section 232 of the Administration of Criminal Justice Act, 2015
which relates to criminal proceedings, specifically sexual
offences, terrorism, trafficking and economic and financial crimes.
Also, the practice of anonymising the full names of witnesses in
Statements on Oaths to be used as evidence at the trial of election
matters/petitions in Nigeria, usually to protect their identity,
has become accepted and established by the Election petition
Tribunals and endorsed by the appellate Courts. See Joseph v.
Labour Party (2015) LPELR-42145 (CA), Orji & Anor v. INEC & Ors
(2020) LPELR-49525(CA).

However, there are no provisions for other sensitive matters
like medical status, mental health and divorce proceedings which
sometimes involve facts which the petitioner may be unwilling to
disclose to the public due to the reputational damage and possible
societal stigma that may follow. More importantly, there are no
provisions for the anonymization of the names of the person and/ or
parties intending to commence the action and the need to conceal
their identities and/ or sensitive data when judgment is being
delivered and/or published.

It is important to state that Section 36(3) of the 1999
Constitution provides that the proceedings of a court or any
tribunal relating to the matters mentioned in subsection (1) of
this section (including the pronouncement of the decisions of the
court or tribunal) shall be held in public. Also, Section 294 of
the Constitution enjoins the Court to furnish each party with a
copy of the judgment upon the conclusion of proceedings. The import
of the above is that once a person is party to or witness in a
suit, sensitive or personal data relating to the person become
public knowledge, and in the language of the law, knowledge to the
whole world.

3.0. Comparative analysis of anonymization
provisions in Nigeria and other jurisdictions

3.1. The United States’ Anonymization
System:

The United States generally operates an open court system in
line with the principles of fair hearing. As a default, a fair
trial is an open trial. US Federal Rules of Civil Procedure, Rule
10(a), 2019 states that the title of the complaint must contain the
names of all the parties.

American Courts have made it clear that the right to an open
trial may give way in certain cases to other rights or interests
such as the defendant’s right to a fair trial. Therefore, litigants
are allowed to proceed anonymously or under a pseudonym in limited
circumstances when non-disclosure is necessary to “protect a person
from harassment, injury, ridicule or personal embarrassment.”

Rule 5.2., Federal Rules of Civil Procedure permits privacy
protection for filings made with the court pertaining to minors. It
states that: “Unless the court orders otherwise, in an electronic
or paper filing with the court that contains an individual’s social
security number, taxpayer-identification number, or birth date, the
name of an individual known to be a minor or a financial-account
number, a party or non-party making the filing may include only:
(1) the last four digits of the social-security number and taxpayer
identification number; (2) the year of the individual’s birth; (3)
the minor’s initials; and (4) the last four digits of the
financial-account number.”

3.1.1. Balancing the Right of Privacy with Public
Interest in the United States of America:

Some circuits have adopted a balancing test to determine the
specific circumstances that will warrant the grant of anonymity.
Some of these factors include;

.The severity of the threatened harm;

.The reasonableness of the anonymous party’s fears;

.The anonymous party’s vulnerability to such retaliation;

.The precise prejudice at each stage of the proceedings to the
opposing party, and whether the proceedings may be structured so as
to mitigate that prejudice; and

.Whether the public interest would be best served by requiring
that the litigants reveal their identities.”

(See Does I thru XII v. Advanced Textile Corp., 214 F.3d 1058,
1067-68 (9th Cir. 2000).

The first two factors are deemed the most important and are
generally considered together.

The possible argument that may erupt on the basis that court
proceedings and documents ought to be accessible to the public in
view of the vital role they play in the society can be rebutted by
demonstrating that the danger and/ or derision which the
Plaintiff/Claimant may likely face in the event that the suit is
not commenced anonymously exceeds public interest as explained in
some cases below.

In the case of Lauren B. v. Baxter International Inc. &
Subsidiaries Welfare Benefit Plan for Active Employees, 298 F.R.D.
571, 573 (N.D. Ill. 2014) which involved a claimant who was seeking
reimbursement for medical expenses relating to residential
treatment for an eating disorder (a serious mental health
condition), the court permitted the plaintiff to litigate under a
pseudonym. “In this instance,” the court explained, “that balancing
of harms favours Lauren’s opposition to the motion – there are
indeed ‘compelling reasons of personal privacy’ at issue. Lauren’s
response confirms that her severe mental illnesses, including but
not limited to the long-standing eating disorder from which she
suffers, create death risks and a threat to her recovery which
public disclosure would entail”. The above is truly the exceptional
case that rebuts the general presumption referred to earlier, in
view of the identified harm and risk of harm to Lauren that public
disclosure may cause.

Also, in Doe v. County of Cook, the Court held that in a few
cases, justified interest in privacy warrants non-disclosure of a
litigant’s name. Also, in Doe v. City of Chicago, 360 F.3d 667, 669
(7th Cir. 2004), the court held that judicial proceedings are
supposed to be open. The Court went further to hold that the
presumption that the parties’ identities are public information and
the possible prejudice to the opposing party from concealment can
be rebutted by showing that the harm to the plaintiff… exceeds the
likely harm from concealment”.

It is important to state that the Courts in America have also
refused to grant applications seeking to commence actions
anonymously in non-deserving cases. See the case of Doe v. Amazon,
2011 WL 13073281(W.D. Wash. 2011)where an actress sued Amazon
claiming that a database it owned, IMDB.com, improperly disclosed
her age and that if her age was known, she would become blacklisted
in the film industry. The court in its ruling against the actress
found that while embarrassment, ridicule and retaliation were
serious harms, the threat was insufficient to allow her to proceed
anonymously. See also A.G. v. Unum Life Insurance Company of
America, 2018 WL 903463 (D. Ore., Feb. 14, 2018).

The Position under the European Union:

The Court of Justice of the European Union ensures that when
acting in its judicial capacity, the principle of open courts and
public information is reconciled with the protection of personal
data of the persons mentioned in cases brought before it.

The court allows for a person to contact the Court of Justice
requesting the grant of anonymity where such a person considers it
necessary that certain personal data on him or her should not be
disclosed in published materials. However, for such a request to be
considered, it must be made at the earliest possible stage of the
proceedings.

Also, where anonymity has been granted by the referring court or
tribunal, the Court of Justice will respect that anonymity in the
preliminary ruling proceedings pending before it (Article 95 of the
Rules of Procedure of the Court of Justice). After the request for
a preliminary ruling has been lodged, the Court can also anonymize
the case of its own motion or at the request of the referring court
or tribunal or of a party to the main proceedings.

Where anonymity has been granted by the General Court in a case
against which an appeal has been brought before the Court of
Justice, the latter will as a rule respect that anonymity in the
proceedings pending before it. Article 190(3) of the Consolidated
Version of the Rules of Procedure of the Court of Justice 2012
provides for anonymization in appeal cases. At the duly reasoned
request of a party to the proceedings or of its own motion, the
Court may, if it considers it necessary, also replace the name of
one or more individuals mentioned in the context of the proceedings
with random initials.

Recommendations for the Nigerian System:

The civil procedure rules of the various courts in Nigeria need
to be reviewed to allow parties, in deserving cases, commence an
action in a pseudo name or anonymously. · Anonymity should be
granted by the court where the right to privacy outweighs public
interest and possible consequences of undisclosed identity. · In
line with European Union practise, a request for anonymity must be
made EXPARTE at the earliest possible stage of the proceedings.

Chukwumerije is a team lead at Pinheiro LP, his
core areas of practice and interests are Intellectual Property Law
and Technology Law.