The detective behind the controversial “NightJack” blog, which heavily criticised the police and senior politicians, has failed in his attempt to stop The Times revealing his identity. 1
In refusing an interim injunction, Mr Justice Eady held that The Times owed the claimant no duty of confidence under the traditional law of confidence. He also held that the claimant did not have a reasonable expectation of privacy under the more recently developed cause of action arising from the misuse of private information. 2
Background
The claimant had worked for the Lancashire Constabulary for 17 years and as a detective for 12 of those years. His “NightJack” blog had attracted an avid following, a nomination for the Orwell Prize and numerous offers from newspapers, literary agents, publishers, and film and television producers. He did not take up any of these offers, firmly maintaining that he wished to remain anonymous, and that he had no desire to exploit the blog commercially. In the claimant’s own words: “I was shielded from any consequences of my action but without the protection of that anonymity, there were clearly areas where I would have to answer for breaches in the expected standards of behaviour for police officers.” The excitement surrounding the blog subsequently diminished.
Several months later, it transpired that a journalist from The Times, Patrick Foster, had embarked on his own detective work and deduced the claimant’s identity, mainly through research on the internet. The claimant learned of this when he heard that The Times had sent a photographer to his home. He applied for an interim injunction to prevent The Times from revealing his identity, basing his claim on both the traditional law of confidence and misuse of private information.
Decision
In relation to the claim for traditional breach of confidence, the judge concluded that the information in the blog did not have the necessary “quality of confidence”. This is one of the three essential elements of a traditional action for breach of confidence, the others being that (a) the information must have been imparted in circumstances importing an obligation of confidence and (b) there must have been unauthorised use of the information to the detriment of the party that originally communicated it.
In the absence of a genuine breach of confidence, the claimant needed to demonstrate that there would be a legally enforceable right to maintain his anonymity and therefore to suppress the fruits of the detective work carried out by The Times. The mere fact that the claimant wished to remain anonymous did not mean either that he had a reasonable expectation of doing so or that The Times was under an enforceable obligation to him not to reveal his identity.
In relation to the claim for misuse of private information, Eady J adopted the usual two-stage test. The first stage is to consider whether the claimant has a reasonable expectation of privacy in relation to the information concerned. If a reasonable expectation of privacy is found, the second stage is to consider whether there is some countervailing public interest to justify overriding that right. The test for privacy is an objective one. 3
The judge distinguished this case from other cases in which claimants have successfully relied on this cause of action. Such cases have, up to now, involved information of a strictly personal nature that is not generally publicly available concerning, for example, sexual relationships, mental or physical health, financial affairs or the claimant’s family or domestic arrangements. By contrast, in this case there was a significant public element in the information. The identity of the blogger was information that was readily available by undertaking internet research. While those who wished to communicate with the public on online blogs often took steps to disguise their authorship, in the judge’s view this did not mean that someone who had deduced their identity should be restrained by law from revealing it.
Eady J accepted The Times’ proposition, based on Mahmood v Galloway, 4 that a journalist who writes under a pseudonym for the purpose of functioning more effectively in undercover work has no reasonable expectation of privacy in relation to his identity, nor, in particular, in relation to photographs that would, when published widely, reveal his identity. This was of particular relevance to the present case as the claimant knew that The Times had sent a photographer to his home. While the judge did not consider the decision in Mahmood to be strictly binding upon him, he found its reasoning “entirely persuasive”. Although the claimant in the current case was not a journalist, the function that he performed through his blog was closely analogous.
The claimant’s identity did not qualify as information for which the claimant had a reasonable expectation of privacy, essentially because “blogging is a public activity”.
In the claim for misuse of private information, the application had failed at the first stage of the test, but the judge went on to consider the public interest position in any event: any expectation of privacy that the claimant might have been able to establish would have been outweighed by the public interest in revealing his identity as the author of the blog. The Times argued that the public was entitled to receive information about the author’s identity to enable it to make an assessment of the weight and authority to be attached to the criticisms made in the blog. The claimant, however, suggested that all that readers needed to know was that he was a serving police officer. Disagreeing with the claimant, the judge said that it was very often useful, in assessing the value of an opinion or argument, to know its source: as Lord Nicholls observed in Reynolds v Times Newspapers, 5 one may wish to apply greater caution or scepticism in the case of a person with “an axe to grind”.
Eady J also rejected the claimant’s submission that there was no public interest in the disclosure of his identity, and that the publication of such information would make no “contribution to a debate of general interest”. The defendant’s right to freedom of expression was not conditional on establishing a public interest. Even if it were, it would be quite legitimate for the public to be informed who was choosing to make serious criticisms of police activities and allegations of misconduct.
Comment
The judge concluded emphatically that blogging is essentially a public rather than private activity.
Such a broad proposition does not, on the face of it, recognise that a large proportion of blogging is undertaken anonymously. Yet a crucial distinction is drawn between protecting an individual’s identity and protecting personal information about an individual. While revealing an individual’s identity might infringe the right to respect for private life, the information in this case was imparted through a blog and was not personal in the strict sense to the author. An expectation of privacy could not therefore arise.
The decision does not go so far as to suggest that, by imparting information through a blog, a reasonable expectation of privacy can never arise in relation to the writer’s identity.
In this case, the claimant tried to present the judge with a moral dilemma by suggesting that his identity should not be revealed, since this would lead to disciplinary action against him. The judge suggested that any such justification for an injunction would be “unattractive”, to say the least. It was not, in the judge’s view, “the court’s function to protect police officers who are, or think they may be, acting in breach of police disciplinary regulations from coming to the attention of their superiors”. Nor was the judge persuaded that a distinction should be drawn between the claimant’s police duties and what he did “off duty”.
Arguably, a court’s approach would differ if revealing a blogger’s identity would in some way present a threat to that individual’s personal freedoms and civil liberties. For the time being, however, that question remains unanswered.
Eleanor Steyn & Stephanie Harrower
Article to be published in Entertainment Law Review.
[1] The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358.
[2] I.e. contrary to the right to respect for private life under Article 8 of the European Convention on Human Rights. See Campbell v MGN Ltd [2004] 2 AC 457 and McKennitt v Ash [2008] QB 73.
[3] Napier v Pressdram Ltd [2009] EWCA Civ 443.
[4] [2006] EMLR 26. [5] [2001] 2 AC 205.
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