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Tyranny's shield
17 Jun 2009
BY DAVID BANISAR

nightjackThe ruling against blogger NightJack suggests that anonymous speech is bad for society, says David Banisar

The decision by Mr Justice Eady that the identity of police blogger NightJack could be released has been characterised by many observers as part of a “privacy versus free expression” case. However, it would be more accurate to say that it signifies a battle between the free expression rights of newspapers to publish information and the right to individuals and groups to speak and publish anonymously. By ignoring the second right, it sets a precedent for future cases where bloggers or other sources can be identified by upset government or corporate officials.

The decision seems to be based on the underlying idea that anonymous speakers are bad for society. Eady broadly ruled that the public interest would be in knowing the identity of the author — allowing the public to make an assessment of the published material based on the person’s standing. Arguments about the right of informed individuals to criticise government policy or reveal information in the public interest without fear of sanction are discarded without serious analysis on the effects on the flow of information from such sources.

The consequence is that sources of information will be less likely to speak out, because they are told that if they want to say anything of a public interest, they should be identified.

It should be obvious to all now that the Internet can be a powerful tool for revealing information that would otherwise not be public and that anonymity is a key part of the process. One only needs to look at the success of Wikileaks, with its thousands of formerly suppressed documents.

Under Eady’s analysis, Wikileaks (and any journalists who receive information that may be in violation of internal regulations) could be forced to reveal their sources because the public (or the crown in enforcing their regulations) should know who they are. This is inconsistent with 20 years of European Court of Human Rights rulings on anonymous sources as essential to expression. The “axe to grind” argument cited by Eady, suggesting that readers should be aware of any ill-will motivating an anonymous source, is the same one constantly heard by those who want to suppress whistleblowers and dissidents across the world.

The case highlights the basic weakness in UK law in free expression. Across the ocean in the US, the Supreme Court has constantly recognised the interest in anonymous speech. As far back as 1960, the Supreme Court said that “anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind”. It ruled in the McIntyre case in 1995 that: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”

David Banisar is Deputy Director of Privacy International, a Non-Resident Fellow at the Center for Internet and Society at Stanford Law School and a Visiting Research Fellow at the School of Law, University of Leeds.

Read the full ruling here (Word doc)

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11 responses to “Tyranny’s shield”

  1. […] he thought the public interest was better served by his unmasking; I don’t. As David Banisar wrote on the Index on Censorship, anonymous sources have long been considered essential to free […]

  2. […] Index on Censorship » Blog Archive » Tyranny’s shield […]

  3. Paul Bailey says:

    Re anonymous posting of anything, please think about it for a minute. It’s about credibility. If what you have to say is responsible, respectful, and constructive albeit critical, then you should have no problem using your real name. It lends credibility to your opinion. However to hide behind a mask of any kind, removes credibility, holds no one accountable for the statement, and is therefore completely and utterly worthless.

    Taken to the extreme, ask yourself how do you know the source of the information or opinion is even real? It could be the very enemy you fight, freely using dis-information to confuse you, get you to tilt at windmills, fight a tangential fight. While you attention is on that, the real game is going on behind you.

    Think about it.

    Freely I give my name here…

    Paul Bailey

  4. Barry Walters says:

    Already election material, leaflets etc, must carry the name of the publisher and the printer, and it may be necessary to extend this to election material published by e-mails or on the internet, if this is not already done.
    It would be easy to extend this to all published material not only election material.

    Barry

  5. Roger Pearse says:

    The basic issue is one of freedom of speech for little people. You rightly say that we need reform in this area. As more and more laws are passed which criminalise the expression of various opinions, naturally the demand for anonymity grows, and equally naturally the state tries to violate it.

    The public interest was not served by shutting down this whistleblower. On the contrary; only the political interests of some narrow-minded senior policemen were served, and the interests of everyone else were damaged.

  6. Frank Fisher says:

    Hi Dave – long time no see – I don’t think you have this right. The Times shouldnt’ be restricted from publishing factual information – no matter what that info might be – that has been obtained via any normal journalistic process; as happened here. NightJack wasn’t “forced” to abandon anonymity, he simply left sufficient clues for a journo to expose him. Why they chose to do that is another story – and relates more to the MSM’s hate of the ‘net than anything else – but you can’t make reporting the facts illegal…

    What *does* need opposing would be any legislative attack on anonymous publishing, online or elsewhere: making it an actual offence to publish anonymously. But in a roundabout way, this is what we face in the UK and elsewhere; via data retention and effectively unlimited trawling, but also by mooted suggestions, which keep coming back, of *confirmed* online identities. Whether that is via some kind of biometric login, or a packet by packet ISP-attached identifier, or any other such scheme, that needs to be opposed strongly.

    As it stands, you can, more or less, publish anonymously if you’re clued up enough, try hard enough, use the right tools – moves to criminalise those tools, or worse, put them out of reach with some “gentlemen’s agreement”, eg P2P, need exposing for what they are.

    I shall miss Nightjack, but it’s the police at fault for refusing to accept dissent in the ranks, rather than the press, or even that publicity hound Eady.

  7. David says:

    You seem to ignore the diference between the right to publish and the obligation to reveal. The fact that public interest gives the Times the right to publish the name of an anonymous blogger does not mean that that same interest could coerce wikileaks or anyone else to reveal their sources.

    Surely those who argue for freedom of expression and complain against the broadning of rights of privacy should not complain when the Times reveals the identity of an anonymous blogger. It would be very different if an internet provider were forced to reveal a blogger’s identity but that is not what this case is about.

  8. Based on the reportage of the case, Justice Eady ruled correctly. To have done otherwise would to state it would be agree that the state may use its monopoly on violence to gag the Times.

    While the British judiciary is to be condemned for issuing gag orders in other cases, the double standard is better remedied by refusing to apply gag orders anywhere, rather than applying them everywhere.

    Anonymity is important exactly because it is an enabler of freedom of expression. But to protect it, and poorly, while curtailing freedom of expression is counter-productive.

    As for WikiLeaks, it does not need protection of these laws; Although we are, in theory, protected under Belgium and Swedish source-protection laws, these laws are directed against the state itself, not journalists, and many of our opponents do not follow the rule of law. That is why we have technical systems to protect our sources regardless of law.

  9. Gareth says:

    Should Night Jack be allowed to restrain the right to free expression because of mistakes he made on his blog that allowed him to be identified?

    Would bloggers be so up in arms about this if Night Jack had been attempting to injunct a blogger rather than a newspaper?

    The Night Jack case will serve to strenghten anonymous blogging not weaken it, as it is a warning that you must do things properly. Don’t set yourself up as an anonymous blogger and then actively court attention or make it relatively easy for people to find out who you are.

    The MacIntyre case seems to me, a non-expert, to be a bit of a red herring. Nice sentiment though. It was about whether MacIntyre could publish without being required to put her name on every pamphlet. That is akin to not being allowed (rather than able) to publish on a blog anonymously. It did not concern absolute protection from ever being named.

    Night Jack can still publish anonymously if he wants to – just pick another pseudonym and be more careful. He would have stood a better chance of remaining anonymous by being less specific with the details he published.

  10. Joe Bloggs says:

    One of the many things that sticks in the craw about this action by The Times is that Newspapers frequently publish articles by Journalists writing under false names to protect their anonimity. They also make a virtue out of protecting Their Sources.
    Seems like this was simply an act of professional jealousy by the paper.
    Ive stopped buying it by the way.

  11. Alan Harrison says:

    My field of expertise is industrial relations, as a practitioner on the trade union side and as an academic for several years, with interests in workers’ resistance to, or compliance with, the demands of management.

    Eady’s judgment strikes me as explicable in old-fashioned class terms. He is pronouncing illegitimate a commonplace form of informal resistance – telling uncomfortable truths about management – and seeking to impose a “duty” of loyalty to the employer, to whom he concedes (as axiomatic) a right to impose disciplinary rules.