Mr Justice Eady has rejected the application by the award winning blogger known as Knight Jack who sought an injunction to restrain The Times from identifying him. One of the remarkable aspects of this case is that the claimant was not only a journalist but also in effect his own confidential source and the defendant was a newspaper which routinely has recourse to such confidential sources.
Knight Jack is a serving police officer whose blog recently won the coveted Orwell Award. His blog mostly dealt with police work but he expressed opinions on social and political issues relating to the police and the administration of justice. He expressed a number of strong opinions about matters of political controversy, criticising a number of Ministers. He declined all offers to make money from the blog.
Insofar as he wrote about cases of which he had direct knowledge through his police duties, he took care to disguise the information and the identities of the individuals that he wrote about. He took care to avoid flouting court reporting restrictions, and to avoid commenting on cases which were “active” within the meaning of the Contempt of Court Act 1981. Inevitably, however, he did this without the knowledge of his employers.
The Parties
The defendant was a large news organisation that relies (and indeed insists) on the confidentiality of its sources. Its sister company sought to protect the identity of Mazher Mahmood (the Fake Sheikh) to allow him to do his work effectively as a journalist. His modus operandi was to ‘sting’ individuals by pretending to be a moneyed Arab businessman to induce that individual to do or say something reprehensible.
Here the same large news organisation that employed him was “outing” a police officer who plainly required the cloak of anonymity to do his job as a blogging journalist. There is no clue in the judgment as to why The Times wished to do this.
Knight Jack’s argument was simple: he was an anonymous blogger who had taken steps to preserve his anonymity and the effect of “unmasking” him was to render his work as this modern journalistic incarnation impossible; precisely the argument used by Mr Mahmood.
The Two Stage Test
Mr Justice Eady explained that the court adopts a two stage approach in these cases: firstly the court must decide whether the claimant has a reasonable explanation of privacy in respect of the information at issue. If the answer to that question is yes, then the court goes to a second stage of enquiring whether “there is some countervailing public interest such as to justify overriding that prima facie right.”
The judge cited the decision of the Court of Appeal in Napier v Prestram Ltd where one of the judges made the following observation: “freedom to report the truth is a precious thing for both 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.”
The Rationale for the Judgment
One of the ironies of citing this judgment is that the application was aimed at retaining Knight Jack’s “freedom to report the truth” precisely because it is a precious thing for the liberty both of Knight Jack and the sake of wider society. As The Times well knew, the decision to unmask him robbed Knight Jack of that freedom.
The judge cited the case of Mahmood v Galloway which arose from George Galloway’s attempt to unmask Mr Mahmood, and drew from it the principle 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…” He therefore concluded that “the Claimant fails at stage 1 because blogging is essentially a public rather than a private activity.”
The judge therefore addressed the second element of the test even though he accepted that in the light of his decision concerning the first stage, the exercise was “somewhat artificial”. He found that the claimant failed on that ground too – partly because he clearly felt that his desire to avoid the consequent disciplinary process was no basis to preserve but rather to strip him of his anonymity.
The Anomalies in the Judgment
There are two remarkable elements to this case. The first is the decision on the part of The Times to unmask the blogger in the first place. There is no clue in the judgment as to why this decision was taken, and it seems that The Times has refused to let its journalist explain the decision to the news media – so much for openness and freedom of expression.
This decision by The Times is perhaps not surprising in the light of Paragraph 14 of the PCC Code: “Journalists have a moral obligation to protect confidential sources of information.” It seems, however, that Knight Jack’s pleas to the PCC for assistance also fell on deaf ears. Since The Times has signed up to this provision it doubtless recognised it was going to have some difficulty in justifying itself. The Times (and its sister titles) relies on confidential sources all the time. It relies on information that it derives from police officers, whose identity it keeps confidential. On the face of it there appear to be double standards at work here.
This leads to the second remarkable element of the judgment. Not only do both the PCC Code and NUJ Code specifically set out the duty on the part of journalists to protect their sources, it is also recognised by Section 10 of the Contempt of Court Act 1981. This protection exists despite the fact that blogging journalism is (to quote Mr Justice Eady) “essentially a public rather than a private activity.” Why then should papers enjoy protection for their sources?
The Rationale Applied
Let us assume that The Telegraph’s anonymous source of the revelations about MP’s expenses was called Westminster Jack, and rather than delivering them en masse on a disk he released the information in tranches. Plainly his actions would be a breach of his employment contract, and the reason why he would need anonymity is to continue his public interest work. If the information was published in The Telegraph nobody would doubt its right to protect the anonymity of its source.
If Westminster Jack were delivering this information as a Telegraph columnist would that make any difference? Surely not. But it seems from this judgment that because he is a mere blogger the law will not protect him.
Conclusion
It seems then from the judgment of Mr Justice Eady that a publisher is entitled to protect the anonymity of its sources to preserve its Article 10 privacy rights, but the source itself (when he/she also happens to be the journalist) may not be. This is an anomaly which seems hard to justify.
In the light of the provisions making clear that police officers have a duty of confidentiality, why is it appropriate for the courts to protect their confidentiality if the information comes via a newspaper but not if it comes via a blog?
It does not seem that these arguments were put to the judge, in the light of their absence from the judgment. However, since the anonymity of journalists’ sources is itself an Article 10 issue it appears that the more appropriate decision for the judge to make was not the balance between the blogger’s Article 8 privacy rights and the Article 10 free speech rights of the journalist/paper that wanted to expose him, but the balance between his Article 10 rights and the Article 10 rights of the newspaper. If that exercise had been done it is difficult to see how the newspaper could have prevailed.