The Author of a Blog v Times Newspapers Ltd

Reference: [2009] EWHC 1358 (QB)

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 16 Jun 2009

Summary: Confidence – Privacy – Disclosure of identity of author of pseudonymous blog

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Appearances: Jonathan Barnes (Respondent) 

Instructing Solicitors: Olswang for the Claimant/Applicant; Alastair Brett, Times Legal Department, for the Defendant/Respondent

Facts

The Claimant is a serving police officer and the author of the “Night Jack” blog, which deals with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. He sought to conceal his real identity by blogging under a pseudonym. It was accepted that a journalist for the Times newspaper had successfully identified the claimant by a process of deduction and detective work, mainly using information available on the Internet. The Claimant applied for an injunction to prevent the Times publishing his identity. He argued that the newspaper was subject to an enforceable duty of confidence not to reveal his identity and that he had a reasonable expectation of privacy in respect of the information that he was the blog’s author, in respect of which there was no countervailing public interest justification for its disclosure.

Issue

Whether the Claimant’s identity could be protected by the law of confidence or privacy; whether nevertheless there was a public interest justification for publication.

Held

The information that the Claimant was the author of the blog did not have about it the necessary quality of confidence as contemplated by Coco v A N Clark (Engineers) Ltd [1969] RPC 41 and nor did it qualify as information in respect of which the Claimant had a reasonable expectation of privacy, since blogging is a public activity. Further, even if the Claimant had had a prima facie right to protect his identity, this would be likely to be outweighed at trial by a countervailing public interest in this case, namely the revelation to the public that a particular police officer had been making these communications. That would assist the public in assessing the value of the opinions expressed by the blog and in coming to their own conclusions about whether it is desirable for serving officers to communicate such matters publicly, whether or not that is an infringement of relevant police disciplinary regulations. Accordingly the injunction was refused.

Comment

The court saw no greater justification for a “reasonable expectation of anonymity” in this case than in that of Mahmood v Galloway, in which an undercover journalist failed to prevent being “outed” by the publication of his photograph. The court acknowledged that this may give anonymous bloggers some pause for thought, if in fact they can be unmasked by the fruits of detective work. But the court stressed that absent a genuine breach of confidence a blogger does not have a legally enforceable right to maintain his anonymity.