Human rights – Blogs – Confidentiality – Freedom of expression - Police

Author of a blog v Times Newspapers Ltd: QBD (Mr Justice Eady): 16 June 2009

The applicant blogger (B) applied for an interim injunction to restrain the respondent newspaper (T) from publishing any information that would or might lead to his identification as the person responsible for that blog.

B was a serving detective constable and his blog mostly dealt with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. One of the reasons why B was keen to maintain his anonymity was because there was said to be a significant risk of disciplinary action if his employing police authority became aware that one of its officers was communicating information and opinions to the public at large about the conduct of police operations. The relevant Police (Conduct) Regulations imposed restrictions on the disclosure of information by police officers. T had identified B by a process of deduction and detective work, mainly using information available on the internet. B’s case was that he had a reasonable expectation of privacy in respect of his identity as author of the blog and there was no countervailing public interest justification for its publication.

Held: (1) The court adopted a two-stage approach when addressing claims based on the publication of allegedly private information in contravention of article 8 of the European Convention on Human Rights, asking whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, whether there was some countervailing public interest such as to justify overriding that prima facie right. The test for privacy was an objective one, Napier v Pressdram Ltd [2009] EWCA Civ 443, Times, 2 June (2009) followed.

(2) B failed to demonstrate that there was any legally enforceable right to maintain anonymity, in the absence of a breach of confidence, by suppressing the fruits of detective work such as that carried out by T. In those cases that had come before the courts, where the claimant relied successfully on the recently developed cause of action to restrain publication of allegedly private information, in the absence of any pre-existing relationship of confidence, the information in question had 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. However, in the present case there was a significant public element in the information sought to be restricted. What B sought to withhold from scrutiny was the identity of the person communicating to the public through his blog. Those who wished to hold forth to the public by that means often took steps to disguise their authorship, but it was a significantly further step to argue, if others were able to deduce their identity, that they should be restrained by law from revealing it. The information did not have about it the necessary ‘quality of confidence’, Coco v AN Clark (Engineers) Ltd [1968] FSR 415 Ch D applied. Nor did it qualify as information in respect of which B had a reasonable expectation of privacy, essentially because blogging was a public activity, Mahmood v Galloway [2006] EWHC 1286 (QB), [2006] EMLR 26 considered.

(3) If that was wrong the court had to balance, under section 12 of the Human Rights Act 1998, B’s rights under article 8 against T’s freedom of expression under article 10 of the convention. On that test, any right of privacy on the part of B would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer had been making the communications.

Application refused.

Hugh Tomlinson QC (instructed by Olswang) for the claimant; Antony White QC, Jonathan Barnes (instructed by the in-house solicitor) for the defendant.