17 Jun 2009
The ruling against blogger NightJack suggests that anonymous speech is bad for society, says David Banisar
The decision by Mr Justice Eady that the identity of police blogger NightJack could be released has been characterised by many observers as part of a ‘privacy versus free expression’ case. However, it would be more accurate to say that it signifies a battle between the free expression rights of newspapers to publish information and the right to individuals and groups to speak and publish anonymously. By ignoring the second right, it sets a precedent for future cases where bloggers or other sources can be identified by upset government or corporate officials.
The decision seems to be based on the underlying idea that anonymous speakers are bad for society. Eady broadly ruled that the public interest would be in knowing the identity of the author — allowing the public to make an assessment of the published material based on the person’s standing. Arguments about the right of informed individuals to criticise government policy or reveal information in the public interest without fear of sanction are discarded without serious analysis on the effects on the flow of information from such sources.
The consequence is that sources of information will be less likely to speak out, because they are told that if they want to say anything of a public interest, they should be identified.
It should be obvious to all now that the Internet can be a powerful tool for revealing information that would otherwise not be public and that anonymity is a key part of the process. One only needs to look at the success of Wikileaks, with its thousands of formerly suppressed documents.
Under Eady’s analysis, Wikileaks (and any journalists who receive information that may be in violation of internal regulations) could be forced to reveal their sources because the public (or the crown in enforcing their regulations) should know who they are. This is inconsistent with 20 years of European Court of Human Rights rulings on anonymous sources as essential to expression. The ‘axe to grind’ argument cited by Eady, suggesting that readers should be aware of any ill-will motivating an anonymous source, is the same one constantly heard by those who want to suppress whistleblowers and dissidents across the world.
The case highlights the basic weakness in UK law in free expression. Across the ocean in the US, the Supreme Court has constantly recognised the interest in anonymous speech. As far back as 1960, the Supreme Court said that ‘anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind’. It ruled in the McIntyre case in 1995 that: ‘Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.’
David Banisar is Deputy Director of Privacy International, a Non-Resident Fellow at the Center for Internet and Society at Stanford Law School and a Visiting Research Fellow at the School of Law, University of Leeds.