Anonymity in blogging is regarded as a crucial, enabling, journalistic safeguard by many. Why? Some bloggers will experience social embarrassment in covering the topics of their choice: others will suffer physical threats: other will experience workplace threats, taunting and career damage: others will be robbed of no more than the ability to express their views by the facility of anonymity that the Intarweb gifts them; a gift of courage that they might not otherwise get: still other bloggers will be deprived of life. Big deal.
Geeklawyer has an occasional reader of this august blog, a policeman, whose Internet handle is "Night Jack". Now, Geeklawyer is not a fan of the filth despite his brother being a serving Metropolitan Police orifice. Night Jack to his eternal and irreducible credit had blogged about the misuse of the justice system and police by politicians. He has bitched about asinine police procedures. He has, in short, expressed his views on the deep and profound inadequacies of the modern police system. An insider tells it like it is. A good thing you think? Perhaps exposing corruption political slime budgetary mismanagement would be a good thing? Maybe it would improve things you think? In doing this he provided a considerable public service. Unfortunately the Times, sensing a good story, found out who he was and decided on a casual and pointless decloaking.
Night Jack sued the Times to protect his identity. Geeklawyer was deeply deeply impressed that he went so far as to instruct Hugh Tomlinson QC to act on his behalf. Not as good as Geeklawyer, obviously, but decent second tier stuff. And very very VERY FRICKING expensive. Geeklawyer-on-a-bender-in-Amsterdam type expensive. Ouch.
All to no avail: he lost.
Geeklawyer has justified Eady J's decisions in more recent cases that have been controversial. For example the Singh case, while unattractive, was rightly decided by Eady J. but the decision rested on the peculiar features of interlocutory applications and the balance of proof in defamation cases.
Regrettably Eady J. in his decision in 'The Author of a Blog v Times Newspapers Limited" has displayed less surefootedness. actually, he screwed up.
Some things are good (or at least legally justifiable) in this decision: a) if one blogs then it is in the public domain, there is no expectation of privacy (yea, kinda, maybe mostly); b) if someone investigates a blog author using other public sources then disclosing the blog's Author is legitimate, even if the blog author attempts to protect his identity, if someone finds it out usig legitimate means and there is no expectstion of privacy then there is no prohibition in disclosing such data. As a broad and overarching first principle this is fair. That is, in the absence of further redeeming factors privacy is lost by the decision to publish publicly. Should one so publish then speculation as to the blog's author is fair also. Not so, says Geeklawyer.
Key issues here seem to be that Night Jack ("NJ") was a cop and had access to confidential stuff. Eady J. seemed unconvinced that NJ had cut the right balance between covering controversial issues and not disclosing sensitive stuff. He also seemed to suggest that since he was Filth the public should be able to assess the man and his merits when he disclosed his views: if he was of no merit the Times readers should be put in a position whereby they could assess his views accordingly. This rationale may apply when assessing the merits of witnesses in a court trial but Geeklawyer would suggest that it is the wrong approach. Eady rejected the view that it was enough just to know he was a copper but it seems irrelevant whether he is a good bad or indifferent one when assessing his arguments over police policy. If, say, he is a crap policeman, does that mean that his views on police policy on drunk drivers is immaterial? A doubtful logical proposition.
Again what also weighed against him was the fact that he appeared to be, or was treated as, violating police disciplinary regulations which therefore entitled the Times to disclose who he was as part of public openness against misbehaving public servants. Again, not an unreasonable position; though the severity of NJ's leaks is not something Geeklawyer is aware of: were they trivial? If so this cannot be a good basis for disclosure.
It was said that he could be subject to disciplinary action if his bosses found out he blogged. It transpires that he has now had a written warning. Eady J. nonetheless said that if NJ had breached the police disciplinary regulations then protecting him from the consequences would be 'unattractive'.
Ultimately NJ was undone by breach of disciplinary regulations and by the fact that blogging is essentially a public activity even if done anonymously.
In some respects this judgment is hostage to its facts, but setting those aside Geeklawyer thinks that Eady got this wrong in significant respects: NJ did have a reasonable expectation of privacy and most anonymous bloggers, such as your scribe, do as well. If one uses the contents of this blog to find out who Geeklawyer is and one then publicises it, there has been a misuse of the data and a breach of the trust between the author and the reader which was properly assumed by the author. If there are genuine issues of legality or misconduct outweighing that confidentiality then perhaps limited disclosure to the authorities is justified. Unfortunately bogus arguments along those lines are easy to construct and Eady has shown a disinclination to consider the wider benefits of citizen journalism and social media.
Eady has improperly allowed the needs of tawdry journalism to triumph. It may be that this will set an unwelcome precedent.
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