Anonymous no more…

By Legal Eagle

I can’t believe there is a case called The Author of A Blog v Times Newspapers Limited [2009] 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 [7] 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 [11] 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 [21]:

… 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 [28]:

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.

Night Jack has been taken off line. Horton has released a statement regretting his actions and the embarrassment it has caused Lancashire Constabulary.

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.

25 Comments

  1. Posted June 18, 2009 at 9:32 pm | Permalink

    Very interesting read LE! Thanks for this.

  2. Posted June 18, 2009 at 9:56 pm | Permalink

    Given that the blogging cop was changing names and details, etc, how is this different from a cop writing a script for any one of those cop shows on TV, or a fictional work?

    If a cop writes, say “the new adventures of sherlock holmes’ grandson” but covers the same issues and publishes under a pseudonym, would there be official censure of that?

    If not, then it is the raising of issues uncomfortable for those who /should/ be uncomfortable that has got the blogging cop into trouble.

    In other words, has the cop got into trouble /because/ what he wrote is in the public interest?

    (Oh dear, perhaps Mortimer should have been disciplined by the bar associations and the wigged classes for writing Rumpole!)

  3. Posted June 18, 2009 at 10:38 pm | Permalink

    This is incredibly petty and short-sighted on the part of the newspaper, in that they’ve closed down a source as much as anything else.

    Raise high the barriers to entry, peeps… anti-competitive behaviour, much?

  4. Patrick
    Posted June 19, 2009 at 12:10 am | Permalink

    For reference, Night Jack’s guide to being arrested is here. I would add only one caveat, being that this is not entirely adapted for non-western countries.

  5. Posted June 19, 2009 at 2:34 am | Permalink

    I don’t know how it’s drafted but I’m surprised Horton’s team didn’t try to use the legislation that’s supposed to protect whistleblowers in public institutions. (It doesn’t work – you whistleblow in this country you can and will be sacked regardless – but the rules are there.)

    Does smack very much of “only OUR sources deserve legal protection”.

  6. Posted June 19, 2009 at 3:09 am | Permalink

    Great. Trial by jury now seems to be optional because protecting the jurors in criminal trials is too expensive

  7. Jacques Chester
    Posted June 19, 2009 at 9:57 am | Permalink

    I also would have thought whistle-blowing laws would cover this. Perhaps they only apply if you go to the Ancient Guild of Truth-Tellers and Serious Even Handed Sober Types (aka “real journalists”).

    It looks like time for someone to introduce “whistle-blogger” laws.

  8. Posted June 19, 2009 at 10:48 am | Permalink

    A fascinating post, yes, and I also wonder about the tradition of journalistic anonymity, which used to be widespread, and is now still quite common. Seems a very short-sighted and silly decision by the Times to pursue this case.

  9. Posted June 19, 2009 at 10:48 am | Permalink

    I can’t help finding the action of The Times rather petty and malicious.
    .
    And cowardly! This in an era where the media are little better than word processors that paraphrase official statements and press releases. Supplicants and sychophants to scoundrels, And they go after someone who’s actually doing what they should be!

    the standards of professional behaviour we expect of our police officers.

    Oh hear hear ! Dem and blost, what! We all know what the proper behaviour for the Ol’ Bill is, din we?

  10. pete m
    Posted June 19, 2009 at 11:34 am | Permalink

    Another battle fought in the ongoing war between journalists / newspapers and bloggers. Agree with SL and LE.

    It would be cool if we could all just use our own names, whether as blog owners or commenters. It would do much to improve civility on the net. However, humans don’t act as one civil beast, so you try to work within these limits, and every now and then someone cops a fishhook in the mouth.

    The challenge for newspapers, as they increase their online focus as paper sales fall, is to work with bloggers, not against them. The sooner they learn this the better.

  11. Gummo Trotsky
    Posted June 19, 2009 at 1:49 pm | Permalink

    Is the Eady J of this case the same Eady J who heard BCA v Singh, or was that another Eady J?

  12. Posted June 19, 2009 at 2:42 pm | Permalink

    Really interesting. Thx, LE. I wouldn’t blog in much detail about stuff at work, and don’t blog everything that happens in my family. But I think that people should be able to do this with reasonable assumption of anonymity if they think it’s important to do so. Lies told in public have a way of being found out – whether it’s by a journalist or by a blogger. I guess that organisations imagine that they will have the right of reply if it’s a journalist, whereas a blogger is (horrors!) out of their control and might say anything. And I certainly agree with Pete M about the relationship that newspapers should be building with bloggers.

    A friend of mine has been sent a solicitor’s letter as the result of a critical blog post which was based on a misunderstanding. A company took major offence at something she wrote on the (rather small and local) blog and bullied her on the phone and in print for several days. She negotiated an apology with the solicitor, and published it, but she has left the original post in place. The company claimed her post had created ‘a storm on the internet’. Don’t know if any readers here saw those dark clouds scudding across the horizon?

  13. Gummo Trotsky
    Posted June 19, 2009 at 3:11 pm | Permalink

    LE @ 16

    Well, much as I hate to say “Well that explains it then”…

  14. John Greenfield
    Posted June 19, 2009 at 5:26 pm | Permalink

    Well, it’s a big week for those who like their court room drama set on the stage on some culture war epic. First, we had Jaundice v Jaundice, then The Author of A Blog v Times Newspapers Limited. And just hot off the press, Luvvie v Luvvie

    “Michael Noonan is seeking $250,000 in damages from Gary MacLennan and John Hookham, of Queensland University of Technology’s (QUT) film and television school, over an article they wrote in The Australian newspaper in April 2007.

    The article was about a TV comedy featuring two people with intellectual disabilities, which Mr Noonan had written as part of his thesis, Laughing at the Disabled: Creating Comedy that Confronts, Offends and Entertains.”

    http://www.theaustralian.news.com.au/story/0,25197,25659633-12332,00.html

    But no doubt it will be old news by the time my post gets fished out of moderation in 2016. ;(

  15. Posted June 19, 2009 at 6:44 pm | Permalink

    There’s a part of me that suspects that Eady J would like everyone to sit down politely over tea and cucumber sandwiches, followed by a pleasant evening in the dungeon (to which the upper classes who are into that sort of thing can repast without fear of investigation).

    Tally-ho, old chum!

    I did actually agree with the ruling in the Mosely case, FWIW; it just seems that he’s gone far beyond that, into the realm of policing utterances.

  16. Posted June 20, 2009 at 5:48 pm | Permalink

    What a bizarre judgment, and an absolute shame.

    I think the folks you quote make some good points.

    Really, the philosophical underpinnings that result in whistleblower legislation ought to apply to bloggers. (Mind you, public-sector whistleblowers don’t always fare terribly well, despite the supposed protections in place. The Law Report discussed this last year: http://www.abc.net.au/rn/lawreport/stories/2008/2447026.htm.) If posts are illegal, malicious, defamatory or otherwise unwarranted, the legal system provides a mechanism to remedy that.

    But if bloggers — and especially public-sector bloggers — want to disclose the truth to the public, then they ought to be both free to do so, and to do so with their anonymity protected.

    That would be the case if they went to another public sector authority, such as an ombudsman. And the rationale for that protection supposedly provided by whistleblower provisions is the public interest in encouraging people to come forward and disclose improper conduct in public authorities.

    So why shouldn’t the same reasoning apply when that same public interest is served by direct disclosure to the public?

    I hope we don’t see Australian courts follow the same path.

  17. Posted June 21, 2009 at 4:25 pm | Permalink

    [email protected] The whole misunderstanding was caused by a person answering the phone number advertised for the company who actually worked for another (related) company, not identifying the difference, and then giving wrong information. This ‘imposter’ then inserted herself into a different (but related) situation, and my friend (quite reasonably) assumed that she was doing so on behalf of the original company, who in fact knew nothing about her actions. And to make is ever sillier, it was all about knitting! My friend has had several emails and other private communications about other bullying activities of this company, so she feels much better. She is now blogging madly so that the apology slides off her front page as soon as possible.

  18. Posted June 28, 2009 at 5:36 am | Permalink

    Sorry, Legal Eagle, I’m a little late to this interesting post with mention my situation of providing public access into a fascinating workplace.

    The reason I haven’t suffered detective Horton’s fate is due to a steadfast refusal to cover matters which reflect on taxi network shortcomings, much to the chagrin of driver advocates and activists. That’s a shit fight I happily leave to those better informed on industry matters. Also, fortunately, such issues bore me to tears.

    Rather my primary focus is on passengers, their stories and behaviour. Here I avoid legal blowback by altering or obscuring their identifying details.

    Plus I recognise that cab passengers have an expectation, rightly or wrongly, of anonymity, despite taxis being public vehicles. Fortuitously this is easily accomodated as the essence of my narratives generally don’t rely upon identity, per se.

    Whilst this policy has so far has kept me out of trouble, I’ve bookmarked your important post for possible future reference, just in case! Thanks.

    Great blog, by the way.

3 Trackbacks

  1. […] it was desirable for officers to communicate such matters publicly,” said his Lordship. He concluded Horton did not have a reasonable expectation of privacy, because “blogging is essentially a […]

  2. By skepticlawyer » Sticks and stones… on August 20, 2009 at 9:09 pm

    […] I’ve written before about the outing of “NightJack”, a policeman whose blog became immensely popular. It seemed to me that the development of outing pseudonymous bloggers was a rather sad one. However, in the latest case, it’s a lot more difficult to feel sorry for the person whose details were disclosed. […]

  3. […] for four years, I do think there is a place for anonymity on the Net in some situations, and I’ve written about this in relation to the unmasking of the pseudonymous blogger, “NightJack”. Just as […]

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