U.K. Court rules that anonymous bloggers cannot hide behind the right to privacy


As many of our anonymous cowards, not to forget the FakeIPLplayer, will tell you – anonymity has its own thrills. Unfortunately for some of their anonymous brethren in the United Kingdom a recent decision of the High Court of that country has held that anonymous bloggers cannot restrain another person from stripping them of their cloak of anonymity since blogging is essentially a public activity not covered under the right to privacy.


Justice Eady in a short but sensible judgment in the case of Author of a Blog v. Times Newspapers Ltd. [2009] EWHC 1358 (QB) refused to restrain the Times from publishing the identity of ‘Night Jack’ an award winning anonymous blogger who made a name for himself by criticizing and ridiculing politicians and often the police force itself. The Times newspaper through some detective work of its own found out that ‘Night Jack’ was in fact a member of the police force itself. ‘Night Jack’ unsuccessfully tried to move the court for a preliminary injunction to restrain Times from revealing his identity. He tried to argue that his anonymity ought to be protected under the right to privacy – a right which has existed in English law for quite some time and which has been further re-enforced by Article 8 of the European Convention on Human Rights and Fundamental Freedoms.


Justice Eady declined the injunction primarily on the grounds that blogging was essentially a public and not a private activity and that it was in public interest to inform the citizens of the background of the blogger providing such views. Furthermore the Court concluded that the policeman was actually violating the code of conduct prescribed by police regulations.


Several members of the blogging community have severely criticized the judgment as having the potential to ‘kill off’ independent voices by deterring whistle-blowers and thereby cutting off an important source of information to the public.


The Indian position on privacy is rather nebulous. The Indian Supreme Court has read in the right of privacy into Article 21 (Right to Life) of the Constitution. That however does not automatically confer upon it the status of a fundamental right. At best the Right to Privacy is a weak right which according to the Supreme Court ‘could be restricted on the basis of compelling public interest’. However most of the case-law regarding the right to privacy in India has evolved in the context of state surveillance of citizens or the search and seizure powers of the state , unlike the West where there have been several privacy battles between the media and celebrity citizens. To the best of my knowledge there have been hardly any Supreme Court cases where the right to privacy of a citizen has clashed with the fundamental right to free speech of another citizen. In cases like Mr. X. v. Hospital Z (1998) 8 SCC 296 & Sharda v. Dharmpal (2003) 4 SCC 493, both of which involved the right to privacy in the context of medical ethics, the Supreme Court held that if two fundamental rights were in conflict then in that case the right which in the greater interest of public morality would triumph. (Click here to read up on a detailed 2005 Supreme Court decision on the right to privacy)


The question therefore is, how would and how should an Indian Court rule if ever such a question of law arose in the Indian context? Should an Indian Court protect the privacy of the blogger or should the name of the ghost blogger be revealed especially when it is contended by the media that they are entitled to do so under their fundamental right to free speech. While I look forward to our readers comments on this topic, I will more than happily point you towards the right answer (which would be close to Justice Eady’s reasoning). The reasoning too would be close to Justice Eady’s i.e. If in case the activity is public in nature then there can be no claim of privacy over that activity especially if the person behind that activity has been discovered through legal means. Anonymous blogging may have its own advantages but it is unlikely that any of these advantages will be able to counter the virtues of the fundamental right of the media to free speech and expression. After all great freedom comes with great responsibility.

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Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

6 comments.

  1. AvatarDivs

    Hey Prashant..

    Long time no hear!!!! Interesting post.. as always…

    I agree that J. Eady’s line of thought shall be towed by Indian Courts.. i esp. agree with the fact that if something is public in nature, there cant be a claim of privacy on the same… and that great freedom does come with great responsibility…

    As regards ur qns..i guess blogging being a public activity, to me.. it seems the Court may extrapolate the provisions w.r.t Defamation (if caused) and other such sections. I am not sure, how well the requirements of S. 499/500et al of IPC would fit into this realm…owing to tech diff etc.

    As regards protecting the “privacy of the blogger”…I am not too sure.. ahem ahem.. being one myself… but the suit could def be filed with the blog name/blogger’ id as a party… instead of his real identity.. After all it is in that capacity that an alleged offence may have been committed.Watsay???

    Cheers…

    Reply
  2. Avatarmnbvcxzaq1

    this is with reference to the use of the epithet “coward”. i can only say, “wow, what a self-righteousness!” whatever be the legal position on the issue (n the cited decision seems to be correct also), its incomprehensible for a trained lawyer (i am assuming that the author is) to be so judgmental and so oblivious of the factum of existence of different reasons (some valid n some invalid) for being anonymous. but how can one make a sweeping remark? anyway, gud luck, author.

    Reply
  3. AvatarShamnad Basheer

    Dear mnbvcx…

    I’m not sure whether you’ve tracked earlier posts and comments on this blog…and I guess not. If you did, you’ll notice that a significant number of comments from folks that title themselves as “anonymous cowards”. In fact, there are a number of such entities floating around in cyberspace. So its not about Prashant being self righteous–he’s only used a label that has already been used by commentators on this blog.

    Reply
  4. AvatarShamnad Basheer

    Prashant,

    Terrific analysis. You may need to also strike a distinction between a fundamental right (under Art 21), which can be invoked only qua the govt and a private right susceptible to invocation against private parties. You hint at this in the post, but this distinction should be carved out more emphatically.

    Reply
  5. Avatarmnbvcxzaq1

    reading shamnad, i retract my earlier comment, as i really didnt know abt the position regarding “anonymous coward”. unconditional n sincere apology, author. i ve been following ur bolg only for a couple of months now, n that too, only from a strict academic/impartial angle.

    Reply
  6. AvatarPrashant Reddy

    @Divs,

    Long time indeed…

    Not all anonymous persons online make defamatory comments so I doubt whether the IPC would be relevant unless of course they are defamatory.

    On your second point since the blogger was seeking to establish his right to privacy it would not have made sense for him to reveal his identity.

    Reply

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