The Author of a Blog v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 16 June 2009 |
| Neutral Citation | [2009] EWHC 1358 (QB) |
| Docket Number | Case No: HQ09X02293 |
| Court | Queen's Bench Division |
| Date | 16 June 2009 |
[2009] EWHC 1358 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ09X02293
Hugh Tomlinson QC (instructed by Olswang) for the Claimant
Antony White QC and Jonathan Barnes (instructed by Times Newspapers Ltd for the Defendant
Hearing date: 4 June 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady:
On 4 June 2009 I heard an application in private whereby the Claimant, who is the author of a blog known as “Night Jack”, 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. An undertaking had been given on 28 May 2009 that such information would not be published pending the outcome. I indicated at the conclusion that I would refuse the injunction but, in the meantime, I granted temporary cover to restrain publication until the handing down of the judgment, when the matter could be considered afresh if need be.
The Claimant's case, advanced on his behalf by Mr Tomlinson QC, is based both on the traditional law of confidence and upon the more recently developed doctrine acknowledging an independent cause of action arising from the improper disclosure of private information: see e.g. Campbell v MGN Ltd [2004] 2 AC 457 and McKennitt v Ash [2008] QB 73. It is suggested that The Times is subject to an enforceable duty of confidence not to reveal the Claimant's identity as the author of the blog; alternatively, that he has a reasonable expectation of privacy in respect of that information, in respect of which there is no countervailing public interest justification for its publication.
It was asserted in the Claimant's skeleton for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet.
Mr Tomlinson submitted that the 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 carried out the necessary detective work and sought to unmask them. That may be true. I suspect that some would be very concerned and others less so. Be that as it may, Mr Tomlinson needs to demonstrate that there would be a legally enforceable right to maintain anonymity, in the absence of a genuine breach of confidence, by suppressing the fruits of detective work such as that carried out by Mr Foster.
Mr Tomlinson's primary argument 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. Indeed, it is submitted as a general proposition that “there is a public interest in preserving the anonymity of bloggers”.
It is necessary to examine the matter more closely, however, since the mere fact that the Claimant wishes to remain anonymous does not mean either that he has a reasonable expectation of doing so or that The Times is under an enforceable obligation to him in that respect.
It is well known that the court nowadays adopts a two stage approach, when 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 facie right. Whereas Mr Tomlinson focused most of his attention upon the second stage, and rather took it for granted that the stage one test had been passed, Mr White QC made it clear on behalf of The Times that it was most certainly not accepted that this Claimant had a reasonable expectation of maintaining his anonymity.
The test is an objective one (both for privacy and breach of confidence) and the importance of that has recently been underlined by the Court of Appeal in Napier v Pressdram Ltd [2009] EWCA Civ 443 at [42], where 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.”
Hitherto, in those cases which have come before the courts where the claimant relied successfully upon the recently developed cause of action, in the absence of any pre-existing relationship of confidence, the information in question has been of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. I am not aware of a case in which, as here, there is a significant public element in the information sought to be restricted. I have in mind, of course, that what the Claimant seeks to withhold from scrutiny is the identity of the person communicating to the public through his blog. Those who wish to hold forth to the public by this means often take steps to disguise their authorship, but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it.
Mr White drew my attention to the case of Mahmood v Galloway [2006] EMLR 26. Mr Tomlinson challenged him to identify any useful ratio decidendi from this case, to which Mr White responded by advancing the proposition 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 and, in particular, in relation to photographs which would, when published widely, reveal his identity. It seems to me that Mr White's interpretation is correct and, although the decision is not strictly binding upon me, the reasoning of Mitting J is nonetheless, if I may respectfully say so, entirely persuasive. 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.
I consider that the Claimant fails at stage one, because blogging is essentially a public rather than a private activity.
When I move, therefore, to the second stage, the exercise becomes somewhat artificial. 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. Nevertheless, I should address the arguments raised. It is not always easy to come to a conclusion on matters of public interest on an application for an interim injunction, as Mitting J observed in Mahmood at [24], but it cannot be ignored since s.12 of the Human Rights Act 1998 requires that an overall view should be formed as to the likelihood of the Claimant succeeding at trial. Such a judgment has to be made almost always on an incomplete picture of the available evidence. But that is what Parliament intended.
At this stage it is necessary to address the background circumstances in more detail. The Claimant is a serving detective constable and his blog mostly 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 expresses strong opinions about these matters including on subjects of political controversy. In particular, he has criticised a number of ministers. In so far as he has written about cases of which he has obtained...
To continue reading
Request your trial
- Toh See Wei v Teddric Jon Mohr and Another
- Toh See Wei v Teddric Jon Mohr and Another
-
HRH Prince Louis of Luxembourg v HRH Princess Tessy of Luxembourg and another
...AC 440, [1979] 2 WLR 247, [1979] 1 All ER 745, (1979) 68 Cr App R 342, [1979] Crim LR 247. Author of a Blog v Times Newspapers Limited[2009] EWHC 1358 (QB), [2009] EMLR 22. Bensaid v United Kingdom (Application No 44599/98) (2001) 33 EHRR 205, 11 BHRC 297, [2001] INLR 325, [2001] MHLR 287. ......
-
A Behavioural Understanding of Privacy and its Implications for Privacy Law
...con-sideration to the normative aspect of the test. This paper has emphasised the76 The Author of a Blog vTheTimes Newspapers Ltd [2009] EWHC 1358 (QB), [2009] EMLR 22.77 ibid at [8].78 ibid at [9].79 The difficulties arising in this case are addressed in full elsewhere, see K. Hughes‘No Rea......