Can Victims Of Sexual Harassment Choose To Stay Anonymous?

LS
Lewis Silkin

Contributor

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A recent decision in the Hong Kong District Court sets out the legal principles to be applied in the granting of Anonymity Orders in sexual harassment...
UK Employment and HR
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A recent decision in the Hong Kong District Court sets out the legal principles to be applied in the granting of Anonymity Orders in sexual harassment cases. In this case, the Respondent's application to set aside an Anonymity Order in favour of the Claimant was granted, sending a clear message that anonymity in sexual harassment claims is not automatic and must be properly obtained.

Background

The Claimant (‘X') made a sexual harassment claim under the Sex Discrimination Ordinance (Cap.480) (‘SDO') against the Respondent, Stefano Mariani (‘Mr. Mariani').

X and Mr. Mariani were former colleagues at a local law firm in Hong Kong (the “Firm”) where Mr. Mariani was a partner and X was a registered foreign lawyer.

X obtained an Anonymity Order (‘AO') in these proceedings by way of an ex parte application, which Mr. Mariani applied to have set aside on the basis of:

  1. material non-disclosure;
  2. perjury;
  3. deliberately misleading the Court; and
  4. abuse of process by the Claimant.

It was X's submission that the AO was necessary because:

  1. the evidence to be disclosed would be “highly detailed in terms of the acts of sexual harassment” which would be widely reported in the mainstream media;
  2. the privacy of X's family would be jeopardised;
  3. there would be implications to X's professional reputation;
  4. disclosure of the fact that X had contracted a sexually transmitted disease (HPV) would attract “adverse public reaction” and risk to X's “psychological and / or physical integrity”; and
  5. the balance of convenience was such that X could not be adequately compensated by damages.

Legal Principles of Anonymity Orders

The starting point for consideration of AOs is open justice (i.e. judicial proceedings are held in public and the parties are named in judgments). Any ‘derogations' from this guiding principle should follow a “weighing exercise” to decide whether one litigant should be allowed to hide behind the shield of anonymity.

In conducting the weighing exercise, the primary if not determining factor is that the specific circumstances of the case are such that the application of the general principle would undermine or make impractical the proper administration of justice. Any derogations from the general principle must be strictly necessary as measures to secure proper administration of justice. Besides this, considerations of relevant interests, rights and freedoms must also be taken into account.

Derogations can only be justified in exceptional circumstances and the burden lies with the applicant to provide clear and cogent evidence in support of such derogation based on the specific facts and circumstances of the case.

Examples of when AOs have been granted include instances where the applicant was able to establish risk to life or safety of themselves or others; cases involving children or vulnerable persons, or those under 18 where their welfare may be injured if their names are known; and cases of blackmail where refusing a grant of anonymity would have made any injunctive relief meaningless.

Applications for anonymity are likely to be refused if the application is intended merely to protect privacy or avoid embarrassment.

High duty of full and frank disclosure

The Decision sets out the ‘high duty' of applicants to make full, fair and accurate disclosure of all matters which are material and relevant to the ‘weighing operation' that the court has to make in the granting of an AO, including matters which are or may be adverse to the applicant.

In considering whether X had discharged her high duty of disclosure in obtaining the AO, the Court found the answer to be “a resounding ‘no'”.

X had exhibited about 50% of the WhatsApp records between her and Mr. Mariani, and these were found to be either irrelevant, selectively quoted, and/or taken out of context. Mr. Mariani on the other hand provided a complete transcript of the WhatsApp messages and on his own reading “within the whole context”, the Judge concluded that “this was simply a romantic affair, entered into freely and consensually…”. X had failed to draw the relevant messages to the attention of the Court, which “…show, at the very least, a prima facie defence against the allegation of sexual harassment…obviously a very important matter which should be considered by the court in the ‘weighing exercise'”.

Another “highly selective disclosure” concerns the Firm's meeting note. As part of the Firm's internal investigation and disciplinary process, meetings between X and the respective personnel were documented. The meeting note was “acknowledged and agreed as an accurate record” by X who signed the meeting note confirming “her understanding and agreement” to the Firm's “conclusion” that “based on the information available, there were insufficient evidence or grounds to support the claim for sexual harassment”. X has also indicated that she received advice that “the relationship is likely considered to be consensual”. Although X exhibited the attendance note in her submissions, she did not draw the Court's attention to the relevant passages. It was not an excuse that X deemed these passages to be irrelevant and not important. The Court found that X had completely failed to discharge her high duty to make full, fair and accurate disclosure, and accepted that there was “some force” in Mr. Mariani's argument that this was a deliberate attempt to mislead the Court.

A third serious material non-disclosure concerns Mr. Mariani's contemplated defamation action in relation to emails sent anonymously by X to at least two barrister chambers and a law firm. Although the Court was not concerned with whether the contents of the emails were defamatory, it considered the existence of contemplated defamatory proceedings to be “hugely relevant material matters” which X completely failed to disclose before the Court at the ex parte application. The Judge found merit in Mr. Mariani's submission “that these (non-disclosures) constitute an abuse of process in which the court process was hijacked as means to further publicise her allegations against the Respondent, now with the Claimant hiding behind the shield of anonymity”.

In considering X's arguments necessitating the AO, the Court found that they were largely matters concerning the protection of privacy and avoiding inconvenience; and that her reasons including injury to her child's life or welfare, and embarrassment arising from her HPV diagnosis did not justify anonymity.

The Court ultimately found that X should not be allowed to reap the benefit of the AO as it was improperly obtained. Given the lack of justification of the ex-parte application and the very serious non-disclosure, the AO was set aside.

The Court also found that these were ‘special circumstances' warranting deviation from the usual provision that each party bear its own costs in proceedings under the SDO, and made an award for costs in favour of Mr. Mariani on an indemnity basis.

Honesty of litigants

The concept of open justice is in part to promote the honesty of litigants. Any derogation from this principle must be strictly necessary in order to secure proper administration of justice.

This concept becomes a little more difficult to reconcile in sexual harassment cases. On the one hand anonymity can encourage victims of sexual harassment to come forward and face their harassers without fear of public retaliation and humiliation. Without it, some victims may be reluctant to come forward to report sexual harassment for fear of shame or not being believed. On the other hand, the lack of transparency and accountability that anonymity can provide to a Claimant may also undermine due process. There are legitimate concerns that anonymity could be used, for example, to make false accusations without consequences. It is therefore crucial to strike the correct balance between protecting victims and ensuring a fair process particularly in highly sensitive cases involving sexual harassment.

It was inferred by X's counsel that AOs should be granted upon disclosure of any sexual nature in a claim. However, the Court held that this clearly is not the law given that the granting of an AO would then be almost routine and automatic.

AOs must be properly obtained and this involves presentation of all of the relevant facts and circumstances. By being deliberately selective in her disclosure when making an application for an AO, X has not only exposed herself in what has become a very high-profile case; it risks perpetuating the culture of victim blaming in which victims are not believed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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