I can’t believe there is a case called The Author of A Blog v Times Newspapers Limited  EWHC 1358 (QB). But there is.
“The Author of A Blog” cited as the claimant was the pseudonymous author of a blog known as “Night Jack”. He was a police officer whose blog provided an inside view of police procedure, the seamy side of life and the law. In April this year, the Night Jack blog received the Orwell Prize for political blogging. However, after this, Patrick Foster, a journalist from the Times, determined to work out the identity of the blogger using internet research. Foster has justified his actions on the basis that the Night Jack blogger “was…using the blog to disclose detailed information about cases he had investigated, which could be traced back to real-life prosecutions.”
The blogger sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would identify him. Although an injunction was granted up until the time of judgment, the High Court ultimately refused the claimant’s application. The officer has been revealed to be Richard Horton, a detective constable with Lancashire Constabulary.
Counsel for Horton argued that The Times was not entitled to publish his private information on the basis of breach of confidence and an improper disclosure of private information pursuant to Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Article 8 provides that “everyone has the right to respect for his private and family life, his home and his correspondence.” Counsel submitted that The Times was subject to an enforceable duty of confidence not to reveal the blogger’s identity, or alternatively, that the blogger had a reasonable expectation of privacy in respect of his identity, and there was no public interest justification for its publication.
Eady J said at para  that there was a two stage test for assessing whether Article 8 of the Convention had been breached. The first question was whether the claimant had a reasonable expectation of privacy in relation to the information. The second question was whether there was a public interest which would justify overriding the right to privacy.
Eady J simply concluded at para  that Horton did not have a reasonable expectation of privacy, because “blogging is essentially a public rather than a private activity.”
Even if there was a reasonable expectation of privacy, Eady J said that there was a public interest in overriding Horton’s right to privacy. Eady J accepted the argument of The Times that it was in the public interest to release information about the author, so as to enable the public to make an assessment of the weight and authority to be attached to them. He said at :
… It is very often useful, in assessing the value of an opinion or argument, to know its source. …[O]ne may wish to apply greater caution or scepticism in the case of a person with “an axe to grind”. For so long as there is anonymity, it would obviously be difficult to make any such assessment. More generally, when making a judgment as to the value of comments made about police affairs by “insiders”, it may sometimes help to know how experienced or senior the commentator is.
Further, Eady J noted that Horton had sought to maintain his anonymity in order to avoid disciplinary proceedings. His Honour did not find this argument attractive, saying at :
I do not accept that it is part of the court’s function to protect police officers who are, or think they may be, acting in breach of police discipline regulations from coming to the attention of their superiors (whose task it is to make judgments about such matters, at least in the first instance).
Horton has indeed been disciplined by Lancashire Constabulary in respect of his conduct, which released a statement saying:
The commentary in the blog is indeed the work of a serving Lancashire detective and clearly the views and opinions expressed are those of the author himself and not those of the wider Constabulary.
We have conducted a full internal investigation and the officer accepts that parts of his public commentary have fallen short of the standards of professional behaviour we expect of our police officers.
He has been spoken to regarding his professional behaviour and, in line with disciplinary procedures, has been issued with a written warning.
I can’t help finding the action of The Times rather petty and malicious. For some reason, some journalists seem to despise blogging and bloggers (eg, an article in The Australian the other day to which I can’t even be bothered linking). There’s a suspicion in my mind that this journalist thought to himself, Let’s bring down a blogger who is writing something that is interesting and exciting. Jean Seaton, the director of the Orwell Prize, said:
… But, surely what matters is the accuracy and insight of the information. No one has disputed what this blog said: it was not illegal, it was not malicious. Indeed, in a world where local reporting is withering away as the economic model for supporting it disappears, we know less and less about our non-metropolitan selves and this lack of attention will surely lead to corruption. So this blog was a very good example of reporting bubbling up from a new place.
What is puzzling is the Times attack. The paper has made an intelligent use of blogs, and has been good at fighting the use of the courts to close down expression. NightJack was a source and a reporter. They would not (I hope) reveal their sources in court. Even odder is their main accusation against him: that the blog revealed material about identifiable court cases. The blog did not do this – cases were disguised. However, once the Times had published Horton’s name then, of course, it is easy to find the cases he was involved with. The Times has shut down a voice.
Blogs as a form are no more reliable or “true” than any other kind of journalism. That is why we started a blog prize – to try to help people to find the interesting ones. This decision damages our capacity to understand ourselves just when we need new forms to develop. After Tuesday’s ruling, would you blog about your workplace?
Tom Reynolds, author of Random Acts of Reality, a blog about working as a Emergency Medical Technician for the London Ambulance service, is scathing of the decision:
A lot of what bloggers bring to light is the chronic state of the their day to day life – a classic example would be police bloggers letting us know about how much administration that they must fill in whenever they make an arrest. Part of what I write about is to highlight the flaws in the governmental running of the NHS. Other bloggers do this more than me.
What bloggers do is humanise and explain their section of the world – public sector bodies do well to have bloggers writing within them, after all these are the people who care about what they do, about what improvements should be made and about where the faults come from. They highlight these things in the hopes that, in bringing this information into the public consciousness, they can effect a change that they would otherwise be powerless to bring about.
Anonymity provides a protection against vindictiveness from management who would rather do nothing than repeat the party-line, or lie, that everything is perfect, there is no cause for concern. Having seen management do, essentially illegal things, in order to persecute and victimise staff – anonymity is a way of protecting your mortgage payments.
It is not just for bloggers this protection of anonymity – consider a support forum for people with mental health problems, anonymity allows these user to perhaps be more open, more honest and more themselves then they would do were they forced to reveal their own identities. It is the nature of the internet that our identities are fluid.
…I’m mindful that a lot of exceptionally interesting, thought-provoking blogs might now come to an end. What is to stop companies and public bodies from hunting down people who may have been negative about them. What blogger, with bills to pay and mouths to feed, is now going to take the chance of lifting the lid on mismanagement, badly though policies or idiotic governmental decrees when there is the very real chance that their identities can be revealed for nothing more than a lurid headline on someone’s chip wrapper.
Why should bloggers put their careers at risk, over subjects that they are evangelical about, when the simpler, safer option is to fall back into the horde of people who grumble under their breath yet risk nothing to change things for the better. The world can then continue with less public scrutiny because people are scared to speak out.
The comments in British newspaper articles were overwhelmingly in support of Horton, who seems to have been seen as a credit to the Lancashire Constabulary by the public (no matter that he might have created red faces in the hierarchy because he hasn’t toed the “politically correct” line).
It’s worth remembering a warning in a previous post on divulging online information:
An online persona is an interesting thing – a reflection of the self in a very public forum. One of my old bosses used to say, “Never write anything in a file of which you’d be ashamed if it needed to be produced before the Court.” I tend to employ the same principle with regard to blogging…
Most of the time, I’m careful to say things which won’t embarrass me if they were brought to the attention of my employers or former employers, even though I’m pseudonymous. I guess you can’t take the lawyer out of the girl.
If bloggers want to remain anonymous, I think that should be respected. I can’t help feeling sorry for poor Horton. One of the things I really love about blogs is that they open up windows into different worlds for me (eg, Adrian the Cabbie’s blog). The blogosphere will be a less exciting place if those windows are closed. Perhaps the case was legally correct; perhaps not. But from the point of view of someone who is excited by the different options the blogosphere has to offer, it’s a sad development.