In June 2009, one British court upheld a print journalist's request to keep her sources secret, while another court refused to grant an injunction that would have prevented the unmasking of an anonymous blogger.
A judge in Belfast, Northern Ireland, ruled June 18 that print journalist Suzanne Breen could refuse to disclose to police interview notes and other information related to the killing of two British soldiers.
Judge Tom Burgess of the Belfast Laganside Court rejected an application by the Police Service of Northern Ireland (PSNI) to force Breen, the Dublin Sunday Tribune’s Northern Ireland correspondent, to hand over materials related to her reporting on the March 7, 2009 shooting at Massereene Barracks in Antrim, Northern Ireland. Under Britain’s Terrorism Act of 2000, Breen could have faced up to five years in prison if Burgess had upheld the PSNI application and Breen continued to refuse to turn over the materials, which the Sunday Tribune reported she was prepared to do.
According to Burgess’s opinion, Breen was contacted the day after the Massereene attack by a member of the Real IRA, who claimed responsibility for the shooting. Real IRA is a paramilitary terrorist organization that supports the reunification of Ireland and Northern Ireland. The opinion in In the Matter of an Application By D/Inspector Justyn Galloway, PSNI, Under Paragraph 5, Schedule 5 of the Terrorism Act 2000,  NICty 4 (Belfast Laganside Court, 2009) is available online at http://tinyurl.com/BreenDecision.
PSNI made several inquiries to Breen about her sources and reporting before seeking a court order under Schedule 5(1) of the Terrorism Act, demanding that she provide “all notes, records, photographs and other material whether electronic or otherwise (including computers, disks or other such media) relating to claims of responsibility and contact with paramilitary groups in connection with these investigations.”
Breen argued in court that members of the Real IRA had issued a warning that she would be killed if she cooperated with authorities, and that to comply with a court order would violate her right to life under Article 2 of the European Convention on Human Rights. She also argued that journalists have a general duty to protect confidential sources, referencing the code of conduct of the National Union of Journalists (NUJ), a British and Irish professional journalists’ union. Rule 7 of the NUJ conduct code states, “A journalist protects the identity of sources who supplies information in confidence and material gathered in the course of her/his work.”
According to the Sunday Tribune on June 14, a series of witnesses testified on Breen’s behalf during the June 11 hearing, including British and Irish journalists who offered evidence in support of Breen’s contention that her life was in serious danger and that the values of press freedom and professional journalism ethics compelled her to protect her sources and unpublished materials.
BBC television journalist John Ware testified that Breen faced a credible threat against her life. “[The Real IRA] would have no hesitation, none at all in my view, in killing her. These guys are the Taliban of the republican movement,” Ware said.
Guardian media critic Roy Greenslade connected promises of confidentiality to “credibility and trust,” the Sunday Tribune reported. “These two things go together, and any attempts to break that in any way means that you lose both. That then breaks the whole nature of journalism.”
The Sunday Tribune reported that Tony McGleenan, lawyer for the PSNI, argued that the NUJ code of conduct for journalists “carries no legal force,” and that Breen’s subjective fears for her life did not constitute a verifiable threat.
Breen’s lawyer Arthur Harvey argued that journalists enjoy a “privileged” position, as does their material, be it confidential or not, the Sunday Tribune reported. Harvey called the risks to Breen’s life “objectively real and … immediate and they will be triggered by a breach of ethics that could be imposed upon her.”
Burgess’s June 18 ruling focused heavily on the threat to Breen’s life and the PSNI’s failure to produce evidence contradicting it. The judge referred to a recent report by the Independent Monitoring Commission overseeing paramilitary ceasefires in Ireland and Northern Ireland, which stated that the Real IRA “remain … highly dangerous and active.” Burgess said that the threat to the lives of Breen and her family “is not just real and immediate. It is continuing,” and therefore must outweigh the public interest in compelling Breen to hand over her reporting materials in order to assist in the PSNI’s investigation into the murder of the two soldiers. “I determine that a positive obligation arises on the part of the State, and indeed on the part of this court as a public authority under the provisions of the Human Rights Act, to take such steps as it believes right and proper for the protection of the life of Ms Breen,” Burgess wrote.
Burgess also wrote that he respected the professional obligations of journalists, and that he recognized the “uncomfortable position” created by confidential relationships with sources, “and I believe that discomfort and concern is real in the case of Ms Breen.”
British free press advocates like the NUJ called the ruling a “victory for press freedom,” according to The Guardian on June 18, and Breen called the decision “an absolute landmark … that hopefully will set a precedent. I would like to think that no other journalist would find themselves hauled before the courts like I have found myself, that no other journalist will potentially face five years in prison.”
A June 21 Sunday Tribune editorial said the decision “copperfastens the argument that journalists cannot be used as witnesses or gatherers of information for the police, even though the crime being investigated can be vile indeed.”
However, Greenslade observed in a June 18 blog post on guardian.co.uk that the “less good news” of the decision was that “it is not a definitive judgment on a journalist’s right not to disclose all information received in confidence.” Greenslade also interpreted the ruling narrowly, saying it “sets a precedent on behalf of journalists who receive confidential information from paramilitaries/terrorists, whether in the form of an interview or when taking a phone call in which the caller is claiming responsibility for a bombing or shooting.”
High Court: Anonymous Bloggers can be Unmasked
On June 15, 2009, the British High Court turned down Richard Horton’s request for an injunction against The Times of London to prevent the newspaper from identifying him as the author of the blog NightJack. Horton is a Lancashire detective constable, and his blog, now defunct, was described by The Daily Telegraph of London as “a behind-the-scenes insight into policing.” Horton was often critical of police officials and politicians, advising “decent” members of the public under police investigation to “complain about every officer … show no respect to the legal system or anybody working in it.” According to the Telegraph, NightJack attracted up to 500,000 readers per entry, and won an Orwell Prize for political reporting in April 2009.
The Times reported June 17 that some of Horton’s most widely read blog posts were anecdotes drawn from real cases he had worked on. Although the people and places involved in the cases were made anonymous and the details changed, the cases could still be traced back to real prosecutions. According to The Times, the legal case arose after its media correspondent, Patrick Foster, tracked down the identity of the anonymous NightJack blogger. Horton then secured an interim injunction preventing Foster or The Times from revealing his identity, arguing that he could be subject to disciplinary actions from the Lancashire Constabulary for disclosing confidential information.
However, High Court Justice Sir David Eady overturned the injunction in a decision that The Times and The Guardian of London both described as “a landmark.” Eady wrote that Horton had “no reasonable expectation of privacy” because “blogging is essentially a public rather than a private activity.”
“I do not accept that it is part of the court’s function to protect police officers who are, or think they may be, acting in breach of police disciplinary regulations from coming to the attention of their superiors,” Eady wrote, adding that the fact that Horton wanted to remain anonymous did not mean that The Times was under an enforceable legal obligation to maintain that anonymity.
According to The Times, Eady wrote that even if Horton had argued that he had a right to anonymity, he would have overturned the injunction on public interest grounds. “It would seem to be quite legitimate for the public to be told who it was who was choosing to make, in some instances quite serious criticisms of police activities and, if it be the case, that frequent infringements of police discipline regulations were taking place,” Eady wrote.
The Times reported that Horton’s lawyer, Hugh Tomlinson, had argued that “thousands of regular bloggers … would be horrified to think that the law would do nothing to protect their anonymity if someone carried out the necessary detective work and sought to unmask them.” The Daily Telegraph said the decision “could have implications for thousands of other anonymous bloggers.”
Meanwhile, Times lawyer Antony White argued that there was public interest in a police officer not complying with his obligations under the statutory code governing police behavior and also with a more general duty of police officers not to reveal confidential information obtained in the course of a police investigation.
The Times reported that the Lancashire Constabulary issued Horton a written warning in response to his blogging.
Both the court ruling and The Times have drawn criticism. In a June 18 column for The Guardian, pseudonymous blogger “Belle de Jour,” author of the popular blog Diary of a London Call Girl, called the ruling “a dangerous precedent” and the identifying of Horton “ruthless.”
“While certain content on [Horton’s blog] was ethically questionable … the content of his writing in no way justifies a blanket ruling that blogging is a public act and therefore cannot be anonymous …. Tell that to whistleblowers in any industry,” Belle de Jour wrote, adding, “I think it is clear that any other police officers who might have thought about revealing what truly went on in their department will now think twice. And that, in case you need reminding, is a loss in a democratic society.”
According to The Daily Telegraph, Horton was “one of about a dozen police officers to have run popular blog sites, along with scores of other public servants, which anonymously document their daily life.”
Belle de Jour also lamented the fact that the NightJack blog had been pulled down as a result of Horton being unmasked by The Times. “I am suspicious when any organisation cracks down hard on an individual. … I, like many others, would appreciate a second reading – to figure out what exactly was so incendiary about his writing that the Times felt it necessary to destroy his career.”
Daniel Finkelstein, Chief Leader Writer and a political columnist at The Times, responded to the criticism with a June 17 blog post on The Times’ Web site. “When a public servant decides to reveal the confidences of their colleagues and details of their work, especially on police cases, then their identity becomes a legitimate matter of interest. And other journalists might reasonably investigate the matter. What, say, if it turned out that NightJack wasn’t actually a detective at all? Or that he was [former London police commissioner] Sir Ian Blair? Are we really saying that his identity isn’t a public matter?” Finkelstein wrote.
– Patrick File
Silha Fellow and Bulletin Editor