Good NightJack: a legal blow to whistleblowing

Australia devolves much of its law from Britain. The news that a court has forced a policeman there to reveal his identity as a blogger will eventually have profound consequences for Australia too. The case was an ironic clash of rights between the privacy of the individual writer to preserve their anonymity as a whistleblower, against the right of a newspaper publisher to name the individual under a pretext of outing their bad behaviour. The judge sided with the newspaper.

On Tuesday British High Court Justice David Eady ruled that anonymous bloggers have no right to keep their identity secret. The case was brought by Richard Horton, a 45 year old detective with the Lancashire Constabulary. Horton sought an injunction to prevent The Times from naming him as the author of the revealing police insider blog NightJack. The anonymous hard-hitting blog attracted a readership of half a million people. His advice to readers was: get your complaint in first (“racism and homophobia are your friends”); never explain to the police, because they’ll use it against you; claim suicidal thoughts.

Horton may or may not have had suicidal thoughts of his own when Eady rejected his plea that his anonymity be preserved “in the public interest”. The judge said Horton knew he risked disciplinary action if his bosses found out. “The public was entitled to know how police officers behaved and the newspaper’s readers were entitled to come to their own conclusions about whether it was desirable for officers to communicate such matters publicly,” said his Lordship. He concluded Horton did not have a reasonable expectation of privacy, because “blogging is essentially a public rather than a private activity.” And so the thirst of the Times to tell a story destroyed the blog.

On Tuesday Lancashire Constabulary issued Horton a written warning and announced he had accepted “that parts of his public commentary have fallen short of the standards of professional behaviour we expect of our police officers.” Horton was silenced and all we got was a comment from his lawyer: “He is keeping his head down and won’t be making any comment.” The blog itself was expunged. Now when you log on to Nightjack, you get a terse message from Word Press saying “The authors have deleted this blog. The content is no longer available”.

But there are some cached versions around of some of his posts. For instance the 27 November 2008 entry shows some of his difficulties of being a policeman. “For this and a few other reasons, I am now pretty sure that although I did not join the Stasi, we are in fact being used as such by politicians looking to settle grudges just like the Evil Poor on the Cannonrail Estate.” Provocative perhaps, but where in any of this is the necessity to know his name?

Even The Times admits the blog “gave a behind-the-scenes insight into frontline policing, included strong views on social and political issues.” So this case was not about the right to know – Horton was already making sure the audience had that right. It was simply an act of petulance by The Times. The paper had praised the anonymous blogger profusely in April when he won the Orwell Prize for political blogging.

But a Times journalist named Patrick Foster was determined to find out who he was. Foster played the despicable “child offender” card in order to scramble to the high moral ground. As he explained it, “what the Orwell Prize judges did not know is that he was also using the blog to disclose detailed information about cases he had investigated, which could be traced back to real-life prosecutions.” Next, the killer line from Foster, “each involved sex offences, often committed against children.” This long bow was carte blanche enough for Foster to out him.

The final lines of Foster’s article noted the blog was now closed and Horton’s “superiors are now aware of further allegations that he was also using the blog to disclose information gained during his investigations.” And with that Foster signed off, smugly happy that he had closed off a route of truth talking to power all in the name of perpetrating a moral panic. Journalists of all people should know the value of anonymity and have gone to jail rather than reveal their anonymous sources to judges. The Times will have plenty of time to regret their stupidity of getting a High Court to override this. In one stroke of a judicial pen, whistleblowing just got a lot more difficult.

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