Tuesday, June 16, 2009

High Court refuses to protect anonymity of police blogger

The author of the now deleted popular police blog, Night Jack, has been named by the Times following the conclusion by Mr Justice Eady, in the High Court today, that
"...it is not likely that the Claimant would succeed at trial in restraining The Times from publishing his identity as the author of the blog, whether on grounds of traditional breach of confidence or by way of reliance upon the more recently developed remedies in respect of "private information"."
The officer concerned, detective constable Richard Horton, has been issued with a written discplinary warning by the Lanchashire Constabulary on reportedly accepting "that parts of his public commentary have fallen short of the standards of professional behaviour we expect of our police officers."

Mr Horton's lawyer told the court that thousands of bloggers would be horrified if they thought they could be easily identified through a bit of legwork on the Net. The outcome of the case is another lesson that activity on the Web cannot be automatically assumed to be anonymous; but contrary to the impression given by the Times story, the decision does not mean that the identity of every blogger will be fair game for journalists or anyone else intent on exposing them. Mr Justice Eady's conclusions are, as ever, very carefully crafted to apply to the circumstances of this particular case - a police detective blogging critically about his police work who wanted to remain anonymous in respect of those writings.
  1. It is well known that the court nowadays adopts a two stage approach, when addressing claims based upon the publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. One must ask, first, whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, then move to the second stage of enquiring whether there is some countervailing public interest such as to justify overriding that prima facie right. Whereas Mr Tomlinson focused most of his attention upon the second stage, and rather took it for granted that the stage one test had been passed, Mr White QC made it clear on behalf of The Times that it was most certainly not accepted that this Claimant had a reasonable expectation of maintaining his anonymity.
  2. The test is an objective one (both for privacy and breach of confidence) and the importance of that has recently been underlined by the Court of Appeal in Napier v Pressdram Ltd [2009] EWCA Civ 443 at [42], where Toulson LJ commented:
  3. " … For a duty of confidentiality to be owed (other than under a contract or statute), the information in question must be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential. As Cross J observed in Printers and Finishers Limited v Holloway [1965] RPC 239, 256, the law would defeat its own object if it seeks to enforce in this field standards which would be rejected by the ordinary person. Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential."
  4. Hitherto, in those cases which have come before the courts where the claimant relied successfully upon the recently developed cause of action, in the absence of any pre-existing relationship of confidence, the information in question has been of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. I am not aware of a case in which, as here, there is a significant public element in the information sought to be restricted. I have in mind, of course, that what the Claimant seeks to withhold from scrutiny is the identity of the person communicating to the public through his blog. Those who wish to hold forth to the public by this means often take steps to disguise their authorship, but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it."
The judge then says the claimant fails at stage one - i.e. has no reasonable expectation of privacy - "because blogging is essentially a public rather than a private activity." Then although the detective has essentially lost the case at that stage, Eady still goes on to discuss the issue of whether it would theoretically be in the public interest to maintain his anonymity - paragraphs 12 to 30 - and suggests that it would not. The concludes:
"I conclude that he fails at stage one, in the sense that the information does not have about it the necessary "quality of confidence", as contemplated by Megarry V.-C. in Coco v A N Clark (Engineers) Ltd [1969] RPC 41; nor does it qualify as information in respect of which the Claimant has a reasonable expectation of privacy – essentially because blogging is a public activity. Furthermore, even if I were wrong about this, I consider that any such right of privacy on the Claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications."
So as far as headlines are concerned I would go for "Freedom of expression trumps privacy in NightJack case" rather than Ruling on NightJack author Richard Horton kills blogger anonymity, though I accept that neither exactly trips off the tongue.

Update: Emily Bell at the Guardian considers the decision was bad for bloggers and democracy.

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