No privacy protection for anonymous bloggers

A RECENT DECISION of the High Court of England and Wales has held that anonymous bloggers have no right to privacy in their identities. In Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB), Justice Eady refused to grant an interim injunction preventing the publication of the controversial blogger’s identity, because it did not “qualify as information in respect of which the Claimant has a reasonable expectation of privacy essentially because blogging is a public activity" (at [33]).

The blogger, a Lancashire police detective, was the author of the "Night Jack - An English Detective" blog, which had won praise for its realistic account of frontline policing and its critique of the criminal justice system.

The blog also won the prestigious Orwell Award for political writing in April, the first blog to do so.

Seeking to prevent the Times from publishing his true identity, the blogger argued that such publication would be in breach of the recently developed cause of action protecting against improper disclosure of private facts. Justice Eady noted the primary argument was "simply that the Claimant wished to remain anonymous and [had] taken steps to preserve his anonymity accordingly. It was submitted as a general proposition that there was a public interest in preserving the anonymity of bloggers, and that "thousands of regular bloggers who communicate nowadays via the Internet, under a cloak of anonymity, would be horrified to think that the law would do nothing to protect their anonymity if someone sought to unmask them".

Justice Eady noted that the courts adopt a two-stage approach to addressing claims based upon the publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. "One must ask, first, whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, then move to the second stage of enquiring whether there is some countervailing public interest such as to justify overriding that prima fade right".

Referring to the case of Mahmood v Gollowoy [20061 EMLR 26, which held that a journalist who writes under a pseudonym for the purpose of functioning more effectively in his undercover work has no reasonable expectation of privacy in respect of his identity, the Judge noted that "[A]Ithough the Claimant here is not a journalist, the function he performs via his blog is closely analogous" (at [10]). Justice Eady held that the blogger’s desire to protect his identity failed at stage one, "because blogging is essentially a public rather than a private activity" (at [11]).

Furthermore, even if there had been a right to privacy, any such right would have likely been outweighed by "a countervailing public interest in revealing that a particular police officer [had] been making these communications" (at [33]).

British lawyers have called the judgment a warning to anonymous web columnists writing the inside stories of their professional lives: they have no legal protection against their identities being revealed. "I think there’s a misunderstanding by people who use the web that they’ve got an entitlement to be anonymous," Reynolds Porter Chamberlain partner Jaron Lewis told the Financial Times. "This makes clear they don’t."