Analysis: bloggers can no longer be sure on anonymity – Times Online: June 16, 2009

Analysis: bloggers can no longer be sure on anonymity
Frances Gibb, Legal Editor

Thousands of bloggers churn out opinions daily — secure in the protection afforded to them by the cloak of anonymity.

From today, however, they can no longer be sure that their identity can be kept secret, after a landmark ruling by Mr Justice Eady.

The judge, who is known for establishing case law with his judgments on privacy, has struck a blow in favour of openness, ruling that blogging is “essentially a public rather than a private activity”. In the first case of its kind, Mr Justice Eady ruled that a serving police officer could not have an injunction to stop The Times identifying him as the author of the NightJack blog.

The judge applied a two-fold test that is now established in privacy cases: first, whether the police officer had a reasonable expectation of privacy (in this case over his identity); and if so, whether that right to privacy was overridden by public interest in disclosure of his name.

The police officer failed on both grounds. Just because he wished to remain anonymous, the judge said, did not mean that he had a reasonable expectation to remain anonymous; nor that The Times was under an legally enforceable duty to protect his identity.

Key to the judge’s decision was the unmasking of the News of the World undercover journalist, Mazher Mahmood, when the MP George Galloway published a picture of him on the internet in his guise as “fake sheikh”.

Mr Justice Eady was persuaded by the judge’s reasoning in that case in 2006 that a journalist who writes under a pseudonym as part of his undercover work had no reasonable expectation of privacy over his identity.

Here, the police officer was not a journalist, Mr Justice Eady said, but the function he performed via his blog was similar.

He added that people who “wish to hold forth” to the public often took steps to disguise their authorship. But it was a “significantly further step” to argue that if people could deduce their identity, they should be restrained in law from revealing it.

The judge then goes on to say that even if the officer had won the argument for a reasonable expectation of privacy, he would lose on public interest grounds.

He was a serving police constable and his work mostly dealt with police work and social and political issues relating to the police and administration of justice, on which he expresses “strong opinions”, including some on subjects of political controversy.

One reason he was keen to preserve his anonymity was fear of disciplinary action if he were exposed.

The judge dismissed that as “unattractive”. He said: “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.”

Mr Justice Eady also accepted the argument, by Antony White, QC, for The Times, that there was a public interest in the failure of a police officer to comply with legal obligations on disclosure of information.

The judge said: “There is much force in the argument that any wrongdoing by a public servant (save perhaps in trivial circumstances) is a matter which can legitimately be drawn to the attention of the public by journalists. There is a growing trend towards openness and transparency in such matters.”

Nor, he added, was it enough to know he was a serving police officer. It was useful to know a source, so as to assess an opinion given or argument; and sometimes to know how experienced the commentator is.
The public, he concluded, was entitled to know how police officers behave and readers could come to their own conclusions as to whether they should communicate various matters in public.

This lies at the heart of the judge’s thinking: he is persuaded that there would be public interest in disclosure because the police officer has potentially communicated information in breach of the regulations.

In effect, the judge has come out backing freedom of information. But perhaps because it reveals a potential breach of confidence or “wrongdoing” as much as any enthusiasm for freedom of information.

The case is not the first in which Mr Justice Eady has ruled against privacy and in favour of freedom of information — and in that case, too, there was behaviour of which he clearly disapproved.

In 2006 he refused to grant an injunction to prevent Associated Newspapers disclosing the details of Lord Browne of Madingley’s relationship with another man after hearing that the former group executive of BP had lied to the court about the circumstances in which the men had met.

That case aside, Mr Justice Eady he has become a target for tabloid fury over his ruling in the Max Mosley case which, they claim, at a stroke created a privacy law. The judge had ruled Mr Mosley’s privacy rights were breached by an article in the News of the World that claimed he had indulged in a “Nazi style” orgy with prostitutes.

Today newspaper lawyers were celebrating one of the rarer Eady rulings in their favour. But ironically, while striking a blow for greater openness and transparency in the blogosphere, there will be plenty of bloggers who will say its effect is the opposite.

“They will argue it has a chilling effect that will deter bloggers from putting information out there,” one lawyer said. “But the reality is that the identify of many bloggers is known. And if it is not, they will just have to take much greater care to keep their identify hidden.”