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Bloggers beware!

Written by Andrew Wilde on 18 June 2009

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The Claimant is an author of a blog known as "Night Jack". He is a serving police officer and is blog is highly popular and of interest to many. He sought on sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for that blog. Mr Justice Eady had refused the injunction but allowed temporary relief pending further consideration. As a consequence an undertaking was given on 28 May 2009 that the blogger's identity would not be published pending the outcome. The Claimant asserted in legal argument that his identity had been disclosed to The Times in breach of confidence. The Claimant's primary argument as Eady J put it:

" was simply that the Claimant wished to remain anonymous and has taken steps to preserve his anonymity accordingly. He says that the Defendant is fully aware of the Claimant's wish and that, in the circumstances, there is no justification for "unmasking" him, as he is entitled to keep his identity as the author of the blog private and confidential".

The Claimant argued that "indeed, it is submitted as a general proposition that "there is a public interest in preserving the anonymity of bloggers".

Eady J agreed to look more closely at this proposition. He accepted that the courts role was to adopt a two stage approach namely :-(1) "whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, (2) whether there is some countervailing public interest such as to justify overriding that prima facie right.

The test was an objective one and as made clear in Napier v Pressdram Ltd 2009 EWCA Civ 443 comments by Toulson LJ commented:

"....For a duty of confidentiality to be owed (other than under a contract or statute), the information in question must be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential. As Cross J observed in Printers and Finishers Limited v Holloway [1965] RPC 239, 256, the law would defeat its own object if it seeks to enforce in this field standards which would be rejected by the ordinary person. Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential."

Eady J was unconvinced as to the identity argument "Although the Claimant here is not a journalist, the function he performs via his blog is closely analogous. I see no greater justification for a reasonable expectation of anonymity in this case than in that concerning Mr Mahmood". (Eady was referring to the case of the Fake Sheikh and George Galloway).

Eady J rejected the argument in point one above " I consider that the Claimant fails at stage one, because blogging is essentially a public rather than a private activity." As for point two he was non too impressed but largely because of the superflous nature of point two:-

"That is because I have to proceed on the hypothesis that one or more public interest considerations have to be identified which would be capable of outweighing the Claimant's right to privacy -when I have already held that no such right exists".

The blogger is Richard Horton, a detective working for the Lancashire constabulary.

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