The end of anonymity?

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.


5 thoughts on “The end of anonymity?

  1. Great summary. Two [relatively] quick points.

    First, the conduct of The Times in publishing this is really quiet astounding. They justified publication as being in the ‘public interest’ insofar as the police officer in question was breaking various contractual obligations of his employment. Given that nearly every leak, lead and anonymous source relied upon by journalists will be in a similar situation this judgment undermines the position of the very sources journalists need to do their job and makes it clear that an attempt to unmask them, simply because they are a source, will not be stopped. This may well be the exemplar case of biting the hand that feeds. Moreover, from an ethical perspective, this makes me wish I actually read the Times so I could now boycott it. The hypocrisy is appalling.

    Second, while I agree that granting a gagging injunction to stop the publication of a newspaper article would be a huge step and is inconsistent with prior authority, it probably would have been the most ‘free expression friendly’ outcome.

    The free speech interest claimed by the Times was the right to ‘out’ someone for expressing public views, with the inevitable outcome that they would be prevented, or at least restricted, from doing so in the future. In effect, the Times relied on a free speech argument to prevent an individual (and possible rival) speaking freely. The only reason, by their own admission, this is newsworthy, is that someone was expressing views who wasn’t allowed to; the Times sought to assert a right of free speech to silence another.

    In such a case, I would suggest that a gag order, as unpleasant as it may be, may have been the appropriate response. A simple analysis as to what course of conduct best protected free speech (and leaving aside chilling effect issues) would seem to compel the injunction. Allowing this one article to be published has probably lead to silencing of dozens, maybe hundreds, of others. If we factor in the chilling effect, we can only speculate as to how much expression will have been curtailed, ex ante, by this judgment.

    Someone was going to be silenced in this case, and I’d suggest it should have been the paper, not the blogger.

  2. Writer Ben Jeapes has some interesting thoughts on this; in particular, he points out that in this case the blog author did not make a particularly thorough effort to disguise his identity. Jack of Kent also has a very thorough dissection of the judgment, and seems to concede that it would have been difficult for Eady J to have found significantly otherwise.

    My main concern is the slippery slope opened up by the public policy argument; if it is indeed in the public’s interest to know the identity of a police blogger, what about a magistrate, a lawyer, or a member of one of any number of other professions?

  3. Thank you both for those very interesting comments. Oisín, as I was alluding to with the point about sources, I think the Times will come to regret their conduct in this matter (not their defence in court, which was sensible, but their ‘investigation’). I will have to think more about your dialogue of chills – I went part of the way down that road with my speculation about it being reframed as NightJack’s Art 10 rather than Art 8 rights, but you have developed it further than that and that is quite interesting. Simon, great links, and on your point, I thought the discussion by Eady of the police/public interest point quite troubling indeed – I wonder if the erstwhile Geeklawyer (a dangerous and devious man, as we all know) wants to comment?

    On a side note, and something I didn’t mention in the original post – I do feel a little sorry for Eady – pilloried for being too pro-Article 8 by Paul Dacre (and many others), and now back in the eye of the storm for being too anti…

  4. Urgent Message to Jack-of-Kent

    Dear jack
    Free Speech needs your help urgently. Please read up on libel pre publication test case for a book that has not been written yet. Do not leave us down jack this case is against all bloggers , writers and journalists and the case is madness

    Search terms for information on the test case
    The Grocuho Gate Affair – The Grocuho Club – Tyrone D Murphy writer.

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