Tuesday, 16 June 2009

Exposed

Night Jack has been outed. The Times names the Orwell laureate as 45 year old Richard Horton, following a legal case in which the Heresiarch's favourite judge refused to grant him an injuction. Mr Justice Eady decided that he had no right to anonymity, despite his evident wish to hide his identity both from the public and, more especially, from his police employers. Blogging, said the judge, is "essentially a public rather than a private activity". The fact that NJ had taken steps to protect his identity does not give rise to a legal obligation on anyone else; nor was there any public interest at stake. If anything, Eady seemed to be of the opinion that public interest would favour exposure, since NJ had revealed (or hinted at) information that was confidential. Moreover, the judge did not "accept that it is part of the court's function to protect police officers who are, or think they may be, acting in breach of police discipline regulations from coming to the attention of their superiors".

From a blogging point of view, this is rather disturbing. It's all too easy to be lulled by the anonymity of the web and the intimacy of the keyboard. But of course, this is far from being the first time that a prominent blogger has found their anonymity prised unwillingly from their grasp. It happened to Zoe Margolis after her online dissection of her sex-life was turned into a book. A similar fate befell "Debauchette", a Manhattan call-girl whose mother recognised her from a TV interview. Catherine Sanderson, writing as "La Petite Anglaise", was sacked by her accountancy firm when they discovered who she was. Last year, the blogger calling herself Civil Serf - whose postings had revealed the ghastly truth about the workings of government - was tracked down by offical snoops and disciplined (although, unlike Night Jack, she was never publicly identified). Exposure is an occupational hazard of which all bloggers should be aware. If you give out personal or professional details on a blog that are available elsewhere - however obscurely - then in principle you can be found; and you find that possibility impossible to live with then either say nothing at all about yourself or quit blogging if you become too popular.

That's what seems to have happened with DC Horton, whose brilliantly observed and pointed postings attracted a wide readership and landed him the Orwell Prize earlier this year. He expressed concerns about possible identification when he was shortlisted but went ahead anyway and was a well-deserved winner. It was not merely the puzzle of his identity that made tracking him down journalistically worthwhile; it was the fact that, as a serving police officer, his identity actually mattered. Eady J even appeared to accept the Times' assertion that exposure was in the public interest:


Mr Tomlinson submitted that all the Claimant's readers need to know is that the author is a serving police officer. I disagree. It is very often useful, in assessing the value of an opinion or argument, to know its source. As was pointed out, for example, by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205A-B, one may wish to apply greater caution or scepticism in the case of a person with "an axe to grind". For so long as there is anonymity, it would obviously be difficult to make any such assessment. More generally, when making a judgment as to the value of comments made about police affairs by "insiders", it may sometimes help to know how experienced or senior the commentator is.


Night Jack was certainly aware of the risks, and took considerable care to avoid exposure. But he may have underestimated just how much he was giving away. It seems that The Times' Patrick Foster had "been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet". To anyone who has never tried it, it might appear difficult or impossible to track someone down online. Sometimes it is. But surprisingly often to get from an online pseudonym to a real person takes just a couple of clicks or a few judiciously chosen searchwords. In Night Jack's case, Foster was apparently able to track down particular cases that had been featured in the blog. It may have been time-consuming but is unlikely to have been very difficult.

Morally, The Times's actions strike me as deeply questionable. Unlike the Independent, they saw no reason to respect the author's reasonable wish for anonymity. Rather than as an ally in the cause of bringing important matters before the public - in the finest traditions of journalism - they prefer to treat Night Jack as a story in himself. They disgraced themselves with this tabloid-style behaviour. I have certainly never revealed the identity of a pseudonymous blogger whose identity I became aware of. Nor would I. But then newspapers are in the business of revealing information; indeed they make a fetish of it. To complain about journalistic practice is like complaining about the weather.

I can't fault Eady on the law. The mere fact that it would be desirable for anonymous bloggers to be protected (if, indeed, that is the case) is not sufficient to create law. It is possible to regret deeply The Times' behaviour without wishing the blunt instrument of the law to have prevented it. As the judge put it,

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.


Eady has attracted largely unwarranted criticism in the past for making the law up as he goes along. Here he's likely to be condemned for sticking to long-established principles. He drew a comparison between this case and that of News of the World reported Mahzir Mahmood, who also failed to protect his identity: it was decided 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". Eady argued that the function performed by blogs such as Night Jack is "closely analogous" to journalism. That is more questionable. The closest analogy from previous generations is perhaps the Letter to the Editor. But no-one would seriously have thought it a breach of confidence if another person discovered their identity - and publicised it - as a result of clues clumsily left in such a missive. Nevertheless, though it brings with it no new legal rights, blogging does raise serious new questions.

Unlike Night Jack, I have no particular need to blog anonymously, and if I had won the prize I would have been happy to accept it under my own name. My identity is neither interesting nor important enough to be worth anyone's while pursuing, however. The same could not be said of a serving policeman who was, at times, highly critical of the force. As with other profession-based blogs, Night Jack relied upon anonymity to be viable - indeed, to be possible. In most areas of life, to insist upon anonymity is to invite suspicion: Who is this person? Why should we believe someone who won't even tell you their name? But where the source is offering first-hand, uncensored information from the front line of business or public service - the police, the army, teaching, the NHS or the civil service - anonymity is, paradoxically, a seal of trust. Where the source is named, we are apt (rightly) to suspect propaganda, or at the very least pulled punches.

The real danger of Night Jack's exposure, beyond the consequences for him personally, is that it will produce a chill factor. Important stories about official or commercial incompetence, bad practice - even illegality - will go untold because insiders will no longer feel safe to blog anonymously. Whistleblowers will stand to be named and shamed - and possibly dismissed. There is a definite public interest in having an insider's perspective on the inner workings of public services. Such blogs, indeed, have in recent years become a valuable hunting-ground for newspaper reporters in search of a good story. It would be ironic if The Times's scoop today deprives them of many more such in the future.

7 comments:

Anonymous said...

It would not be ironic if the decision sought by The Times bridled the blogosphere. It would be in the interests of the largely lazy, conformist press by removing their main competition. So far as the public interest is concerned will the result be that the Press will publish more investigative journalism or that employers who use contracts to stifle their employees right to raise concerns outside the workplace keener to know about and act on problems ? I don't think so.

Anonymous said...

It does seem rather that, where Eady can act to rule in favour of the government, large corporations and other established organisations, he does so. If he can cite the law in his opinion, all the better but he doesn't always seem to find it necessary.

It rather depresses me that the attitude of respect towards establishments and corporations to the detriment of individuals is regressing from 20thC levels of freedom towards the rather oppressive levels seen for the majority of history...

The Heresiarch said...

"It would be in the interests of the largely lazy, conformist press by removing their main competition."

Is it, though? Without bloggers doing the spade-work they'd have to go back to doing their own investigations - something for which they increasingly have neither the resources nor the inclination. I don't think blogs like Night Jack are in any sense competition for the mainstream press. In many cases superior, yes - but it's a very different medium.

Charles Crawford said...

"The real danger of Night Jack's exposure, beyond the consequences for him personally, is that it will produce a chill factor. Important stories about official or commercial incompetence, bad practice - even illegality - will go untold because insiders will no longer feel safe to blog anonymously."

Not sure I agree. It is not as if blogging is the only way to get that sort of thing out into the open, although it maybe is unusually effective at describing an inefficient or dysfunctional process/system rather than an easily understandable bad event (eg a dodgy expenses claim or a cover-up of something ghastly).

The strong underlying trend is towards much more opennness at all levels (partly because IT makes this so much easier to happen anyway), and this judgement won't affect that.

It all comes down to personal professional pride and motivation. If you are really unhappy with the way things work within an organisation, how hard are you prepared to push to get things changed within the rules offering numerous and non-trivial options for doing just that?

Blogging about it all anonymously maybe is an easy way out - some might say a self-indulgent way of avoiding taking some real risks, or the hard work needed to get a better outcome?

The Heresiarch said...

Maybe. But the motivations of the whistle-blower (or leaker) are ultimately far less important than the value of the information being imparted. If the only way one feels able to disseminate matters of public interest is via anonymous blogging, then so be it.

There's no doubt that the advent of anonymous professional blogs has given the broader public a far greater insight into what really happens behind the scenes in institutions and companies than was ever the case before. QED, I think.

Really, this whole business is much more one of journalistic ethics than of the law. It was cheap, nasty journalism on the part of the Times, no doubt about that. But cheap, nasty journalism is hardly something new. I repeat, I don't blame Eady on this one. It is surely an important principle that if I discover something by piecing together publicly available information then you have should have no right to prevent me from disclosing it. Had Eady gone the other way it would have had serious repercussions for investigative journalism of a more serious kind.

asquith said...

I've long wondered about your anonymity. By my very amateurish reckoning (correct me if I'm wrong), you seem to be some form of professional journalist, or at least someone who is no stranger to being published.

It interests me that I could be reading your articles in the MSM, then your blog entries. Also, that this is presumably what you do in your spare time, yet is inevitably excellent.

Jack of Kent said...

Hi Heresiarch

Mt legal analysis of this depressing case is at: http://jackofkent.blogspot.com/2009/06/jack-night-and-privacy-case-analysis.html

Cheers, Jack