The Author of A Blog v Times Newspapers Ltd

An individual who communicates publicly through an anonymous blog does not thereby acquire a reasonable expectation that his identity will remain anonymous. Privacy and confidentiality are assessed objectively. The first question is whether the information has the necessary quality of confidence or engages a reasonable expectation of privacy. If so, the court balances that interest against countervailing freedom of expression and public-interest considerations. Blogging is essentially a public activity, particularly where the author comments on police work and public affairs. The court may also take account of the public interest in identifying a public officer who may have breached professional obligations or whose status and experience are relevant to assessing the weight of his opinions. An interim injunction should be refused where the claimant is unlikely to succeed at trial.

The claimant, a serving detective constable, wrote an anonymous blog about police work and related social and political issues. The defendant newspaper identified him through deduction and internet research and proposed to publish his identity. The claimant sought an interim injunction based on breach of confidence and the misuse of private information. He argued that he had taken steps to preserve his anonymity and that publication would interfere with his rights under Articles 8 and 10 of the Convention.

The central issues were whether the claimant had a reasonable expectation of privacy or a legally enforceable duty of confidence concerning his identity, and, if so, whether publication was justified by countervailing public-interest considerations.

1. Application refused. The claimant was unlikely to succeed at trial in restraining publication of his identity, whether relying on traditional breach of confidence or the cause of action protecting private information.
2. The privacy and confidentiality inquiries were objective. The mere fact that the claimant wished to remain anonymous, and had taken steps to preserve anonymity, did not establish a reasonable expectation of privacy or an enforceable obligation owed by the newspaper. The approach was consistent with Napier v Pressdram Ltd [2009] EWCA Civ 443 and Printers and Finishers Limited v Holloway [1965] RPC 239.
3. The claimant failed at the first stage of the privacy analysis. Blogging was essentially a public activity. The information concerned the identity of a person communicating with the public, rather than strictly personal matters such as health, finances, family life or domestic arrangements.
4. The reasoning in Mahmood v Galloway [2006] EMLR 26 was persuasive. A person using a pseudonym to communicate publicly could not readily claim privacy in an identity which others had deduced. The claimant’s analogous role as a public-facing blogger afforded no stronger basis for anonymity.
5. Even if a prima facie privacy right existed, publication would probably be justified. The public had a legitimate interest in knowing that a serving police officer was making serious criticisms of policing and might have breached professional obligations. The claimant’s identity could also assist readers in assessing the weight of his opinions, including his experience and possible personal interest.
6. The police conduct regulations imposed obligations concerning confidentiality and discreditable conduct, which were not avoided by anonymity or by making disclosures while off duty. The court would not protect a police officer from his superiors where the proposed injunction was sought partly to avoid possible disciplinary consequences.
7. Having regard to section 12 of the Human Rights Act 1998, the court was required to assess the likelihood of success at trial despite the incomplete evidence. The claimant failed both because the information lacked the necessary quality of confidence and because any privacy interest would probably be outweighed by the public interest in publication.

First-instance decision. No prior appellate decision was stated in the judgment.