I’ve been very interested to read the reactions to the decision of the High Court (in the person of the bould Justice Eady) in the ‘NightJack’ case, [2009] EWHC 1358 (QB). In short, the pseudonymous blogger (dead link), quite well-known as a result of winning an Orwell Prize for his tales of life as a police officer, was attempting to prevent the Times from publishing his real name. He failed, and his name was so published by the Times and more widely.

The dominant theme of the response is that the court found against the right to blog anonymously, or that (in some excitable cases) that anonymous blogging was now impossible. (See for example in the Guardian’s PDA blog, ‘Nightjack case kills the right of anonymity‘) I challenge this reading of the case (although I have my own issues with the behaviour of the Times, discussed below). For me, the most important feature to bear in mind when considering the decision and its consequences is that this was an attempt to use the courts to prevent a newspaper from publishing a story (using old-style breach of confidence and Campbell-style disclosure of private information – though the interaction between the two is unfinished business, as we know). If the Times had been prevented from publishing the story, this would, in my view, have been a significant setback for investigative journalism under English law. This is not to say that the Times were engaged in particularly important reporting – personally, I don’t really need to know the police officer’s name – but that the true question before the court was whether it was possible (and appropriate) to prevent the publication of potentially private information. If the result had gone the other way, this would have been quite a big development, meaning that the balance between freedom of expression and the right to privacy would be quite different to what we expect.

Now, the situation is not helped by Eady going into too much detail. I’d rather if he hadn’t done that! However, those comments (towards the end of the decision) are not necessarily at the heart of the decision – some of them are clearly obiter, given that the court finds no reasonable expectation of privacy (nor confidential information for the purposes of old-style BoC), and therefore need go no further. Furthermore, the statement that seems to be causing some concern (“blogging is essentially a public rather than a private activity“, para 11) is, to me, not a problematic one. Blogging is public, in that it involves publication, and is different to a private letter. For a long time, bloggers have made the point (too vigorously at times) that blogging is journalism and is media and so on. All of those activities are, for the purposes of ascertaining a reasonable expectation of privacy (which is the other half of the para 11 sentence), public rather than private activities. With the claim to the media-like status that so many express comes a notion of acting in the public sphere. (As ever, it does not mean that every activity of an individual is therefore public). On that point, bloggers should surely be cheering Eady’s finding that “although the Claimant here is not a journalist, the function he performs via his blog is closely analogous” (para 10). It’s unfortunate for those supporters of NightJack that this means that the prior caselaw (Mahmood v Galloway) on a similar case with a ‘real’ journalist was persuasive – but what would they prefer – ‘bloggers are not journalists and should not be treated as such’? Surely not!

I do disagree with the aspects of the decision that take NightJack’s role as a police officer into account, in terms of discipline and so forth – although unnecessary, I don’t think they were appropriate to an examination of a privacy claim of this nature. To protect the rights of the whistleblower, there needs to be a more subtle examination. (There is also the non-legal approach to the protection of anonymity: outlined in admirable clarity and with a dash of humour at the Online Journalism Blog)

There’s also the question that the freedom of expression of the pseudonymous blogger was infringed by his ‘unmasking’. It wasn’t really before the court, as it was a privacy claim brought by the blogger. That said, I am sympathetic to it as a theoretical argument, more so than I am to the privacy-based claim. I agree that the protection of anonymity is an aspect of free speech (see an excellent discussion of these issues by Eoin O’Dell here)and would support such arguments if, for example, an application was being made by another party to compel disclosure of a real identity. As regular readers know, I am particularly concerned not to class all ‘free speech threats’ as those that are backed by the State – it is possible for private parties to play a very negative role and I support, in certain circumstances, protection of the individual against private threats to free speech. It would have been very interesting to see this argued, though that will be another day’s work. There are similarities between such a situation and the protection of sources.

Finally, I would draw attention to another approach, one that is very well argued by the good Fernando Barrio. He questions the motives of the Times, wondering whether they were in fact attacking a competitor (i.e. a prominent blogger). I’m not sure they thought about it that much, but it does raise a strong ethical question, and one that the Times should have considered – if one of their journalists was writing under a pseudonym (let us presume for good reasons) and a rival newspaper attempted to unmask their identity, what would they do? (Even the Times itself reports the decision as ‘killing’ anonymity, here). I find newspapers suing newspapers quite distressing, given their pronouncements against the threat to free speech posed by gagging writs – but it’s an interesting question. Do unto others, etc. In a week where there has been admirable unity, including between Internet activists and journalism unions (and an encouraging result) from the proceedings regarding Suzanne Breen, no-one comes out of the NightJack affair looking particularly clean.

More: Jean Seaton in the Guardian; Ray Corrigan; IPKat; Times itself.