In this case, decided on 16 June 2009, a blogger writing under the name of “Night Jack” tried, and failed, to get an interim injunction to prevent The Times revealing his identity to the world at large (namely, its readers).
Many bloggers go to considerable lengths to conceal their identity; others do not. There was a very good reason why “Night Jack” didn’t want his identity disclosed: in the words of the judge — “The Claimant is a serving detective constable and his blog mostly deals with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. He expresses strong opinions about these matters including on subjects of political controversy. In particular, he has criticised a number of ministers. … Even though the Claimant believes that he was doing nothing wrong, he suspected that as and when his employing authority discovered his activities, he might be subjected to disciplinary action or, at least, some kind of “pressure” to limit the use of his freedom of expression.”.
The claim was originally put on two alternative bases: (i) breach of confidence; alternatively (ii) improper disclosure of private information. When the case came to court, however, it appeared that the claim for breach of confidence was not being pursued, because the journalist had arrived at the identification of the blogger by a process of deduction and detective work, mainly using information available on the Internet.
The blogger’s main argument in court was that he wished to remain anonymous and has taken steps to preserve his anonymity, and that since the newspaper is fully aware of that, there was no justification for the newspaper “unmasking” him — he was entitled to keep his identity as the author of the blog private and confidential. The blogger’s counsel went so far as to put forward the proposition that “there is a public interest in preserving the anonymity of bloggers”.
When considering a case based on publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, the court takes it in two stages:
- Stage one: does the claimant have a reasonable expectation of privacy in relation to the particular information in question? and if so:
- Stage two: is there some countervailing public interest that would justify overriding that?
The judge found that the blogger failed at stage one “because blogging is essentially a public rather than a private activity”.
Notwithstanding that, the judge went on to consider the second stage as well, because section 12 of the Human Rights Act 1998 requires that on an application for an interim injunction, the court must form an overall view as to the likelihood or otherwise of the claimant succeeding at the ultimate trial.
The judge went on to consider the impact of the relevant Police (Conduct) Regulations from 2004 and 2008, as they have an impact on how serving police officers are supposed to behave. This includes a general prohibition against “discreditable conduct”, and the judge felt (without deciding the issue) that some might think that the blogger’s activities would “discredit the police service or undermine public confidence in it”.
It was argued on behalf of the newspaper that because the blogger’s writings were “overtly political and highly critical of central and local policing strategies”, the public were entitled to receive information about the author, in order to assess the weight and authority to be attached to them. The blogger argued in reply that all that the newspaper’s readers needed to know was that the author is a serving police officer. The judge disagreed with the blogger on this point, referring to a case where it was pointed out that one may wish to apply greater caution or scepticism in the case of a person with “an axe to grind”. He added that when making a judgement as to the value of comments made about police affairs by “insiders”, it can be helpful to know how experienced or senior the commentator is. All of this pointed to the judge inclining towards disclosing the blogger’s identity.
The judge said that “I do not accept that it is part of the court’s function to protect police officers who are, or think they may be, acting in breach of police discipline regulations from coming to the attention of their superiors”.
The judge was not persuaded by the further argument that because the newspaper had disclosed the blogger’s identity to his employers, there was no need for them to publish it more widely to their entire readership. He said that “the public is entitled to know how police officers behave and the newspaper’s readers would be entitled to come to their own conclusions about whether it is desirable for officers to communicate such matters publicly”.
He was also not persuaded by the argument that the disclosure of his identity beyond his immediate supervisor and the Professional Standards Department of the police would have an adverse impact on his work as a detective, e.g. with regard to working relationships with colleagues, and make it more difficult for him to undertake the surveillance and informant handling work for which he had been trained.
In concluding, the judge stated that the claim failed at the first stage, because the information that the blogger was seeking to protect (his identity) did not have the necessary “quality of confidence” to be protected by the law of confidentiality, nor did it qualify as information in respect of which he would have “a reasonable expectation of privacy”. He went on to say that even if he were wrong about that, any right of privacy that the claimant might be entitled to would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer had been making these communications to the public by means of his blog.
Some of this decision may have turned on the particular facts, namely that the person seeking to conceal his identity was a serving police officer talking about police matters, amongst other things. However, the judge’s primary finding was that blogging is a public activity and therefore the identity of the blogger is not private information. On this basis, it’s highly unlikely that any other blogger seeking to preserve his anonymity is likely to succeed in the face of a determined investigative journalist — at any rate, he or she cannot expect much assistance from the courts.