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Blogging detective has no right to privacy, rules High Court

A controversial blogging detective has failed in his attempt to protect his anonymity and The Times newspaper has named him. The High Court said it was not its job to protect blogging police officers from disciplinary action over broken police rules.17 Jun 2009

The author of the NightJack police blog, which has revealed details of cases and engaged in criticism of ministers potentially in breach of police rules, claimed that The Times should be stopped from naming him. He said that the newspaper owed a duty to keep the information confidential, and that he had a right to privacy.

The blogger lost the case and has now been named by The Times as Richard Horton, a detective constable with Lancashire Constabulary. The newspaper said that Lancashire Constabulary told it that Horton had been given a written warning about his actions.

Horton argued that he had the right to remain anonymous on two grounds. He said that The Times had a duty of confidence in relation to the information about his identity. He also argued that he had a right to privacy unless there was a public interest justification for naming him.

Mr Justice Eady in the High Court found that there was no duty of confidence; that Horton had no right to expect privacy when publishing a public blog; and that even if he had that right, it would be outweighed by the public interest in disclosing his identity.

A duty of confidence is owed by someone when it is given information in a situation in which it was clearly meant to be confidential. Horton's lawyer accepted in court, though, that The Times had come by its information independently through its own investigative work.

The Court ruled that the information about Horton's identity was not confidential simply because he wanted it to be. It ruled that the information was no like that protected in other recent cases, which involved sexual relationships, mental health or financial affairs.

"Those who wish to hold forth to the public by [blogging] 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," said Mr Justice Eady.

Horton also argued that he deserved the right to privacy outlined in the Human Rights Act, which guarantees the right to a private and family life. The Court pointed out, though, that this right only exists in relation to activities or situations in which someone has a reasonable expectation of privacy.

Rejecting Horton's right to make that claim, the judge said that "blogging is essentially a public rather than a private activity".

Mr Justice Eady said that Horton also failed to win his case on the question of public interest. Not only was there no public interest in retaining his anonymity, he said, there was a public interest in exposing him.

"There is much force in the argument that any wrongdoing by a public servant (save perhaps in trivial circumstances) is a matter which can legitimately be drawn to the attention of the public by journalists. There is a growing trend towards openness and transparency in such matters," he said.

"[Any] right of privacy on [Horton's] part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications," he said.

Horton had argued that it would do him damage for his identity to be revealed, but Mr Justice Eady said that that was not the Court's business.

"I do 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 (whose task it is to make judgments about such matters, at least in the first instance)," he said.

Privacy law expert Rosemary Jay said that she was not surprised by the judge's ruling that Horton did not have a right to privacy when publishing his blog. She said, though, that some people were entitled to privacy when communicating, albeit through journalists.

"The courts are prepared to accept that journalists' sources are entitled to confidentiality knowing what they say is going to broadcast to world at large because the relationship with the journalist is one of confidence," she said.

"Arguably there might be some circumstances in which a blog would be entitled to privacy. If I am running an Iranian blog telling people where to demonstrate I might be desperate to keep my identity confidential and say it shouldn't be broadcast in the circumstances for example," she said.