Hong Kong court sets out principles behind anonymity orders in sexual harassment cases
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, a 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.
The claimant (X) made a sexual harassment claim against the respondent. X obtained an Anonymity Order (AO) in the proceedings by way of an ‘ex parte’ application (an application granted without the participation of the other party). The Respondent applied to have the AO set aside on the basis that X had deliberately misled the court, including by material non-disclosure.
It was X’s contention that the AO was necessary because:
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. A grant of anonymity 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.
Anonymity can only be justified in exceptional circumstances, and the burden lies with the applicant to provide clear and cogent evidence in support of a 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; 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.
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 half of the WhatsApp records between her and the respondent, and these were found to be either irrelevant, selectively quoted, and/or taken out of context. The respondent on the other hand provided a complete transcript of the WhatsApp messages, and the judge, after his own reading “within the whole context,” 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 when applying for the AO.
X had also failed to draw the court’s attention to the relevant passages in the employer’s record of the internal investigation and disciplinary process meetings between X and the respective personnel. That record confirmed X’s “understanding and agreement” to the employer’s conclusion that “based on the information available, there were insufficient evidence or grounds to support the claim for sexual harassment” and that “the relationship is likely considered to be consensual.” She had further failed to disclose that the respondent was contemplating a defamation action against her.
In light of these omissions and distortions, the court found that X had completely failed to discharge her high duty to make full, fair and accurate disclosure, and this suggested a deliberate attempt to mislead the court. The court further found merit in the respondent’s argument “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. 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 and the very serious non-disclosure, the AO was set aside.
The concept of open justice can be 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.
In this case, the court rejected the argument that AOs should be granted upon disclosure of any sexual nature in a claim. Rather, AOs must always be properly obtained, and this involves presentation of all of the relevant facts and circumstances.
Catherine Leung is the head of Lewis Silkin’s Hong Kong office. Vanessa Ip is a Practice Development Lawyer at Lewis Silkin in Hong Kong.
