Jack out of the Box

The blog world is in uproar over the decision of the England and Wales High Court to not prevent the Times from revealing the identity of the anonymous blogger Night Jack , which led to the revealation that Night Jack was Detective Inspector Richard Horton and issuance of a written warning to him by the Lancashire constabulary. Mr. Horton has since deleted the blog, which was the winner of the prestigious Orwell award.

There is a lot of commentary on this issue already see here
; here; and here; including a Labour MP who came out in support of the “right to remain anonymous” which in the opinion of Justice Eady, who delivered the judgement in The Author of a Blog v Times News Paper Limited [2009] EWHC 1358 (QB) does not exist.

The facts are now well known. The Times, through "investigative journalism" had identified the blogger named as Night Jack. Night Jack sought an interim injunction to prevent the Times from revealing his identity. His lawyers based their case on their client's rights under Article 8 (right to privacy) and Article 10 (right to freedom of expression) of the European Convention on Human Rights and Fundamental Freedoms, 1950.

However, Justice Eady states that in order to attract the application of the above provisions the Claimant would have to establish that he had a reasonable expectation to privacy in relation to the particular information in question. It is only if (i) is achieved would it be necessary to inquire whether there is some countervailing public interest such as to justify overriding the prima facie right.

In the judge's opinion, the Claimant failed to establish a pre-existing relationship of confidence which prevented Times from revealing the information since there is no "public interest in preserving the anonymity of bloggers”. Simplistically, the judge concluded that: “blogging is essentially a public rather than private activity”.

Once the Claimant’s case failed with respect to (i), i.e. the blogger never had a right to privacy, which the Times was required to respect, it was not necessary to go into whether (ii) is satisfied, although the judge did go into the question of whether by blogging, Night Jack had violated his duties under the Police (Conduct) Regulations, 2008.

The key conclusion following from the judgement is that bloggers have no right to privacy or right to anonymity. If their identity is discovered through “detective work” (and therefore not in a manner which amounts to breach of confidence or law, although how this distinction will be made remains uncertain) then the discoverer has the right to reveal the same. The only exception is where the blogger is able to establish that there is an overwhelming public interest in the revelation not being made (for e.g., if it compromises a policeman blogger who works undercover).

The judgement is, as the Claimant’s lawyers put it, “chilling”. Private bloggers, even if they are not civil servants, police officers or other government employees whose terms of employment do not prevent them from expressing opinions, are still not protected by the right to privacy. The assumption that the moment a blogger makes a public post, he loses the right to privacy, since it becomes a public activity, is, to my mind simplistic, and certainly does not examine all nuances of such a situation, It also does not change the fundamental principle of privacy law, that it is for the individual to judge how much information about himself he wants to be made public. In this case, whatever the Court's reasoning, there is no doubt that this rights has been denied.

The notion that the public had the right to know the identity of the blogger, so that they could assess the quality and reliability of his commentary is also presumptuous. It is for the public to decide what they want to rely on. If they choose to rely on commentary by someone who does not want to be named, it is entirely their prerogative, if they want inside information from FakeIPLPlayer, that again is entirely their prerogative.

An anonymous blogger is analogous to a journalist's source, for the blogger he is his own source. Just like the journalist has the right to protect his sources (including within the police force), the blogger should have a right to protect his identity. Unfortunately, this was not something that the Court considered.

Finally, if it is true that the blogger is violating the rules of his service, then it is for the employers to track him down and take action, not for newspapers to go on a witch hunt.