Life at the Bar

My Name is Simon and I’m a Blogger

tcrn226lI don’t often comment on recent cases, but this one is interesting. Eady J has decided that anonymous bloggers have no right to be anonymous. The full decision is here.

That is the limit of his decision, although some of the more flamboyant responses would not have you think so. He has not, for example, said that anonymous bloggers must be named. It is simply that you have no reasonable expectation of anonymity and, if someone finds you out, they can tell the world who you are.

I can see the logic of the decision. Blogging should not be a shield behind which people shelter to make unpleasant allegations for which they never have to answer. The blogger’s main argument was that some important things will simply not be said unless anonymity is guaranteed. Eady J’s answer was that the point is academic because he had first to decide (Art 8.) whether there was a reasonable expectation of anonymity, to which question the answer was ‘no’. In matters such as information about a crime, that answer would clearly be in the affirmative. Nattering to the world at large, in other words, gives rise to no expectation that you will be allowed to do it without being outed.

The public interest issue was dealt with on the confined basis that the blogger in question was a police officer, subject to specific regulations in his capacity as a public servant. It’s difficult to argue with that conclusion – which poses the interesting question as to whether BVC students or pupils are entitled to public interest type protection. Pupils, of course, also have to abide a Code of Conduct.

I hope they are. One of the most distressing entries I ever read on a blog was that the author (a pupil) had stopped blogging because a friend in another Chambers had been told that a blog was a surefire way of not getting a tenancy. Are we really so concerned about our image that an anonymous blog by a pupil could be seen as a threat? Plainly, if the author in question was telling all and sundry about his Pupil Supervisor’s cases and the great plan they had to chew up the key witness on the other side that would be a different matter: but the blog in question was not doing anything like that and I don’t recall seeing one which did.

In a profession dedicated to representing anyone and everyone, denying a blogger anonymity to comment on the legal world as viewed from the bottom of the pyramid seems to me to be a retrograde step. I am not in a position to make a legal difference, but this blog will continue to respect the anonymity of those of you I know, and to allow anonymous comments. People may factor in anonymity when they assess the value to be given to a contribution, but sometimes it is helpful to hear every view – even the scurrilous, the aggravating and the just plain bonkers.

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15 thoughts on “My Name is Simon and I’m a Blogger

  1. One of the main factors as I have seen from Charon QC’s post on this (haven’t read the case in full) is that the police officer was dealing with confidential information and was commenting on cases etc that he was involved in.

    Considering that I can see why the veil of anonymity was lifted.

    There still seems to be a lot of issues with BVCers and pupils blogging, I read somewhere a while ago that one Inn actively discouraged it!

    Glad you are not going to publicly out me!

    Lost

  2. I can see the logic of those employed by the state or owing a duty to the public by virtue of their profession should have no reasonable expectation of privacy.

    I just wonder, however, why personal or human rights to anonymity (in the absence of treading on the the rights of others or committing criminal offences) should not give right to a reasonable expectation of anonymity.

    I do find it rather embarrassing when bloggers criticise Eady J on a personal level for the difficult decisions he makes. He is, to state what should be bleedin’ obvious, a judge. He has to apply the law according to statute and precedent and in the absence of same look at the themes in coming to a judgment. Of course, after 30 years in law I could have got all this completely wrong and judges are, in fact, required to give judgments according to the needs of the various (and many) vested interests.

    I have never met eady J – but, I am told, he is a very able lawyer. I do not think it realistic for newspapers and others to say he is on a mission from ‘god’ (as The Blues Brothers might say) to create a law of privacy.

    But… if journos, law bloggers and the ravening horde of anonymous commenters on blogs can get it wrong – perhaps the new Supreme Court can clarify this growing ‘privacy’ law when they convene in October.

    I am going off piste – but it would be rather good (and interesting) if the Supreme Court had a more sophisticated role than the present Parliament based (but not inlfuenced) House of Lords Judicial Committee.

    We shall see what happens under Lord Phillips’ presidency. Interesting times, indeed.

    Sorry, Simon.. have rather run amok on my latest hobby horse.

    Trust all well.

  3. The bloggers don’t get tenancies line has certainly been trucked out at Inner. I do not recall anyone present thinking this was alarming, but that was only because the message was in keeping with the lack of transparency and accountability etc., which students quickly come to understand as being the norm at the bottom of the Bar pyramid.

    I remember the occasion well. One bencher, three students. Three students falling over themselves to agree with bencher that bloggers were the wrong sort for the Bar. Bencher walks off, and the three students then start discussing what they had blogged about recently.

  4. The ,bloggers dont get tenancy argument was made more alarming at an inn’s advocacy course wherein one of the trainers apparently read out extracts from a number of blogs and added some comment to the effect that such unsavoury articles as to be found promlugating these views did not possess the stuff of a barrister properly so called. It promptly led to the withdrawal of a number of entertaining and informative pupil blogs. Give it up – quite literally – for Freedom of Expression UK, Folks………..

  5. When I got a tenancy, young man, there were no bloggers.

    What’s more, there were no remote controls.

    If you wanted to change channel you had to get up and walk across the room.

    BLOGGING???

    LUX-URY!!!!!

  6. It’s all about fear, power and conservatism.

    I reckon there are plenty of established lawyers out there who are themselves highly unsuitable for law but think there are all sorts of sorts (who happen to be different from them) who are the unsuited ones. You can say the same about high-ranking civil servants (quite a few of whom are unsuitable in my view, which is the kind of plain speaking that’d make them say I was unsuitable) or people in business.

    Most such prejudices can’t be expressed these days; but it’s okay in 2009 to assume that blogging means breaching professional rules (why should it mean that?) or is somehow shady and anyway, “not done”.

    I’d have to advise any young person who depends on the old and hide-bound for their career (i.e. almost all young lawyers) not to identify themselves as a blogger right now, any more than they’d admit to being gay, or interested in a family or part-time work. The old fools believe everyone should have the most conformist and empty life possible, and if you blog they’ll assume you breach professional conduct rules and may well enjoy seizing the chance to black-ball you. The content and quality of your blog is of no interest to these people.

    I think all this should make us reflect on how free a country we really are. I’m much more concerned by this than I am, say, by CCTV cameras.

  7. As an anonymous blogger, I should declare an interest. The Times has form in this regard, having outed ‘girl with a one track mind’ back in 2006, for entirely purient reasons – she wrote a sex blog – and without any ‘public interest’ being involved at all. I wrote about my concerns back then (http://nearlylegal.co.uk/blog/2006/08/anonymity-the-confessional-and-um-me/).
    On re-reading, some of what I wrote then still stands up, particularly on public interest, or lack of it, in such unveiling.

    But the reasons for choosing anonymity are many and complex. Some may be more properly deserving of an expectation of privacy than others. The only bit of Eady J’s judgment that particularly concerns me is the statement that as blogging is a public activity per se, there can be no expectation of privacy. That seems to me to be un-nuanced and dangerous in its effects for some. Further, how would this not apply to an anonymous source who provided quotes/material to a hack knowing it would be published?

    it’s not an issue for me – my reasons for anonymity were various, but principally because I had no idea how my firm would react to the activity and suspected that they would regard it as potentially dangerous. There is nothing on my blog I would not happily put my real name to, but, as others have found, that is no guarantee that employers or peers will view it the same way.

    Happily, having outed myself to the firm – who are thankfully very supportive – and having been outed to others in my sector of law by a senior junior barrister, I’m now only formally anonymous and have nothing to fear from the Times. (There was a point, ironically, that the Times law blog was asking anonymous blawgers to write for them). But I’m lucky in my situation.

    But, what the hell did the Times think it was doing in pursuing and publishing this story? Did they really think this through, while putting up the utterly laughable ‘public interest’ argument. Was it really worth attracting the lasting hatred of just about every sentient blogger, anonymous or not? Well done the chaps at News International. Next, why not shop your anonymous sources?

  8. An excellent comment, NL.

    I agree on reflection that Eady J’s reasoning may not survive intact: it’s going too far, I think, to decide that blogging can never involve a reasonable expectation of privacy. You could conceivably, say, have a blog about living with HIV, say, which could not be said to breach any laws or rules, or bring any employer into disrepute, which would provide useful information and support in the public interest, and which was done anonymously for good reason. It seems to me quite difficult to argue that a blogger like that did not have a reasonable expectation of privacy in relation to the publication of his or her identity.

    I agree, too, that there’s something wrong if those who seek publicity for their views are treated so differently depending on whether they go through a journalist or a blog. Perhaps the problem is the shoe-horning of privacy law into the old breach of confidence law, and the temptation to look for an old-fashioned relationship of confidence.

  9. I may be getting conservative (always with a small ‘c’) in my old age but…

    The points above are susceptible of the same answer on Eady J’s approach. The option of ruling out publication on the public interest test remains.

    On balance, I think that is preferable. If I blog about HIV anonymously, why should I expect privacy? I am putting my experiences in the public domain. If I blog honestly and accurately about my condition then I may well become identifiable. What I am doing, by its very nature, is not private.

    However, it is not in the public interest to ‘out’ me, because the consequences to me are so disproportionate.

    The anonymous source giving information to a journalist is not putting him/herself in the public domain at first hand. Nor is the article their article. Nor is it part of a continuing course of first-hand publication. Nor would it be in the public interest to order disclosure of their identity because the competing principle is that press freedom is more important. Bloggers (however much we may dispute it) are not the press. We do not have a complaints mechanism whereby the seriously offended can seek a correction and apology and which (at least in contemplation) means that journalists check their facts. Nor are most of us capable of paying the damages and costs of a defamation action.

    Now, take Carl’s example further. Say I am a nurse with HIV, blogging about my experiences in the Operating Theatre when I cut myself with a scalpel. There would be a clear public interest in my identity becoming known. Would such identification be preventable on the basis that I expected privacy, when I chose to tell the world anonymously instead of my employers (and the patient) privately?

    The test is more flexible and responsive when put the way Eady J put it. The blogger in the case above was a police officer disclosing details of his cases in circumstances where the rules of his office prevented him from doing so. One can argue about where the line is drawn but it is hard to say the Judge’s discretion in this respect was unreasonably exercised.

  10. The harsh reality is, the bar is a club house with the door ajar just a millimetre of a crack. Blogs have been a no no ever since the Bar understood what the word meant, and this is the reason I have opted to remain anonymous. Not for the (not) controversial views I have, but because whatever I say on the web it could be used against me in a professional capacity as another reason why, according to intellectual snobbery I am the wrong “type” for the bar.

    Poppycock I say. The bar must embrace change, technology and transparency truly, and not pay it lip service. Only then will its survival be secured.

  11. Blogging and expectation of privacy

    The blogger surely expects not to have his identity revealed by having his site cracked or other foul means, If he reveals to much of himself in a post, that surely that is his look out.

    What happened in the Times case is unclear, but it seems from Eady’s comments that it was not a straightforwad case of the blogger showing his hand.

  12. I entirely agree with Lawgirl about anonymity and blogging. The Bar is not particularly good at change and a number of reactions are along the ‘it’s just not done’ line. That detaches what should be a modern profession from the modern world, and it also lacks transparency and tolerance.

    However, I’m not sure I go as far as saying the Bar is a club. I truly believe it is trying not to be. Dinosaurs – as is their habit – will eventually die out, and most barristers, thankfully, don’t think in terms of ‘type’ any more. The blogging issue for the Bar is as much about other peoples’ privacy as anything else, particularly when it comes to pupils – those are legitimate concerns. The trick is in getting the balance right and a conservative approach will always say no before it says yes.

    I think that an anonymous view is helpful. Without such views we deprive ourselves of a crucial resource in terms of perceiving how we are viewed and having some input into it. We try to influence the press, whilst simultaneously trying not to influence those online. That’s madness.

    The price will be that some people feel that they are being unfairly (and anonymously) criticised. But there is no right to feel good about yourself. Individuals need to be careful in what they say but I think the balance favours disclosure.

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