Bloggers Beware

I was in two minds as to whether I should author this blog under a pseudonym or reveal my true identity. As I’m looking to increase my profile in the digital law world and not planning to stir the pot of outrage and controversy, it made sense to opt to be me, but for others the blogosphere is the venue to let loose their alter-ego and to critique the world in which they routinely operate.

Enter "Night Jack", an under-cover blogger sharing his experiences of front-line policing, criticising policing strategies and politicians, using real-life and traceable examples of police investigations and prosecutions. This successful blog attracted almost 500,000 readers at its peak and lead to a prize for political writing for its anonymous author. Ironically Night Jack had not covered his own tracks well enough and a Times journalist worked out the blogger’s true identity by his own process of deduction and detective work mainly using information available on the internet. Night Jack sought an injunction to prevent the Times from revealing this information and his actual identity.

Unfortunately the rein of Detective Constable Richard Horton’s alter-ego, Night Jack, was to be cut-short. In a landmark ruling, the Court took the view that "blogging is essentially a public rather than a private activity" lacking the quality of confidence needed to gain legal protection.

In arriving at its decision the Court asked if DC Horton had a reasonable expectation of privacy? And, if he did, would any public interest argument override that right? In the analysis of the first question, it was found that claimants who relied successfully upon this recently developed cause of action, had a pre-existing relationship of confidence, or the information in question was of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. There was no successful case analogous to that of DC Horton where there was such a significant public interest element to the information in question. The analysis of the second question was therefore academic.

As with the majority of cases this one turns on the facts, and a different blogger with a different subject-matter at a different time will no doubt yield the chance of a different judgement. But for now, bloggers beware, if your alter-ego crosses the line from personal to political/public interest commentary, writing under a pseudonym is no guarantee of your anonymity.

DC Horton received a written warning for breaching his contract of employment. With such a readily-accessible and tempting array of social media tools now available, many of which can be used to both social and business effect, employers are advised of the value in having a clear policy identifying the extent to and manner in which business information should be broadcast across them.

The link to the full script of the Night Jack case can be found here: http://alpha.bailii.org/ew/cases/EWHC/QB/2009/1358.html