On 16 June 2009 Mr Justice Eady held that the author of a blog known as "Night Jack" which made various critical allegations and observations regarding policing matters, had no right to remain anonymous (The author of a blog v Times Newspapers Limited [2009] EWHC 1358 (QB)).

Summary

The blogger was Richard Horton, a detective constable for the Lancashire Constabulary. Horton unsuccessfully sought an injunction to restrain The Times from identifying him as the author of the blog, after a journalist deduced his identity using information mainly available on the internet.

Business impacts

  • Anonymity of online authors may be more difficult to protect than previously thought, eg, where the identity of an individual anonymous blogger has been deduced using publicly available resources.
  • The boundaries of this decision are far from clear: would the result have been different if the ISP had leaked the identity of the blogger to the newspaper? What are the implications for anonymous or pseudonymous contributors to online message boards? The law of privacy is developing rapidly and the approach of the courts remains to be seen.
  • For ISPs and other providers of blogging services it would be prudent still to assume that they are bound by a duty to preserve the anonymity of their individual subscribers.  
  • Those providing blogging services, online discussion groups or chat room services may wish explicitly to warn users that it may not be possible for individuals to prevent their identities from being published by third parties, in particular where the publication is for journalistic, literary or artistic purposes and arguably is in the public interest.  
  • Reports of the death of anonymous blogging may, however, have been exaggerated.  
    • This is a decision in an interim injunction application at which the judge had an incomplete picture of the available evidence.
    • The facts are also quite unusual: a serving police officer was publishing strong political opinions and criticisms of the conduct of the modern police force, possibly in contravention of professional conduct rules.
    • There was a strong public interest in revealing that a particular police officer had been making these postings.  
  • In situations where there is no clear public interest in unmasking an anonymous online author, eg, submissions to an online health forum, the courts may still be willing to restrain publication of an author's identity.  

Background

Horton's main argument was that he wished to remain anonymous, had taken steps to preserve that anonymity and that there was no justification for revealing his identity. It was submitted that, as a general proposition, it is in the public interest to preserve the anonymity of bloggers.

However, the fact that the blogger wished to remain anonymous did not mean that The Times was thereby under an obligation to him in this respect: Eady J held that in order for Horton to remain anonymous, he would need to demonstrate a legally enforceable right to anonymity, absent a genuine breach of confidence.

In considering a claim arising from the alleged misuse of private information in contravention of Article 8 of the European Convention on Human Rights, the court must examine two issues: (1) whether the claimant had a reasonable expectation of privacy in relation to the information in question; and (2) whether there is a countervailing public interest to justify over-riding that prima facie right. In the present case, it was held that Horton had no reasonable expectation of privacy in respect of his identity and, even if he did, any right of privacy would likely be outweighed by a countervailing public interest in revealing that a particular serving police officer had been writing a blog of the type in question.

No reasonable expectation of privacy

Eady J concluded that blogging is essentially a public and not a private activity. In reaching this conclusion, the court approved the reasoning of Mitting J in Mahmood v Galloway ([2006] EMLR 26). The judge held that the function of a blogger is closely analogous to that of a journalist, there being no greater justification for a reasonable expectation of privacy in the case of a blogger than in that of a journalist.

Countervailing public interest

Eady J also considered whether there would be a countervailing public interest in disclosing Horton's identity, even if he did have a reasonable expectation of privacy. The judge held that there would be such a public interest. It was noted that, by publishing his blog, Horton was acting in breach of the rules of conduct applicable to police officers and that it is not the function of the court to protect errant public servants from disciplinary action. Further, Eady J held that it is useful to know the source of an opinion or argument in assessing its value, particularly where the allegations and criticisms regarding police activities purport to contribute to a debate of general public interest.

Data protection

The link between an individual's identity and information relating to him is a fundamental theme in data protection. However, it does not appear that any arguments were heard under the Data Protection Act 1998 (DPA) in this case.

On these facts it appears unlikely that a consideration of the DPA would have produced a different final outcome. This is due to the exemption in section 32 of the DPA for processing of personal data for the "special purposes" (journalism, literary or artistic purposes) where publication is reasonably believed by the publisher to be in the public interest, having regard to the special importance of the public interest in the freedom of expression.

Despite the broad scope of the special purposes exemption under the DPA, there could still be situations where a publication unmasking an anonymous author could not reasonably be said to be in the public interest; the newspaper would then be likely to be in breach of the DPA and could be liable for compensation claims (section 13, DPA).