Monday, 27 July 2009

United Kingdom: Court decides against a blogger's rights to anonymity

From Global Voices:  
United Kingdom: Court decides against a blogger's rights to anonymity
June 23rd, 2009 

by Judith Townend

A new legal precedent has been set for UK bloggers.

Last week, in the England and Wales High Court, Mr Justice Eady ruled that a police officer who previously wrote about his working life on his NightJack blog, did not have the right to remain anonymous.

The claimant - now known to be Detective Constable Richard Horton- had unsuccessfully attempted to get an injunction against The Times newspaper (UK) to stop it naming him. Following the court's ruling Horton has now been issued with a written warning by his police force, the Lancashire Constabulary.

A victory for freedom of expression (The Times')… or a severe restriction for freedom of expression (anonymous bloggers)? Popular opinion is divided, though a blog search would indicate that blogger opinion veers towards the latter.

NightJack, the judge said, did not “qualify as information in respect of which the Claimant has a reasonable expectation of privacy – essentially because blogging is a public activity”. Eady, who is well-known in the UK for his privacy-protecting rulings, stated:

“Furthermore, even if I were wrong about this, I consider that any such right of privacy on the Claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications.”

And the implication for bloggers? “Those who wish to hold forth to the public by this means often take steps to disguise their authorship, but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it.”

It's hard to find anyone in the UK (or international) blogosphere overwhelmingly in support of The Times' ruling; and The Times' own stories about their battle received severe criticism from commenters, even if, as Malcolm Coles suggests, some of the negative comments are a little tricky to find…

Three things to bear in mind for background:

  • NightJack had had undergone the scrutiny of a judging panel in order to win the prestigious Orwell Prize for blogging. The prize's director, Jean Seaton, argues why she believes Eady's ruling to be wrong, here, on the Guardian Organ Grinder blog.
  • Horton, who ended his postings after being shortlisted for the award, donated his prize to the Police Dependants' Trust.
  • One of The Times' main arguments for outing him was its claims 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.'

The bloggers and commenters have reacted with force, many personally attacking Patrick Foster, the journalist at the centre of what Eady called the ‘deduction and detective' process. I've previously rounded up a good mix of links on the Editors' Blog and my own blog which tell the story, but here are a selection of the best blog posts, which draw out interesting nuances. Opinions include:

  • Those who defend their right to anonymity as a blogging police officer. Eg. PC Bloggs.
  • Others who work in the public sector and write about their life and work. Eg. Tom Reynolds, an ambulance driver with a book deal.
  • Those who think NightJack was a little naive in his attempt to remain anonymous: Eg. Letter from a Tory
  • Those with other criticisms against The Times' approach to the case. Eg. Hopi Sen, once an anonymous blogger.

This is just a summary of a complicated debate. Perhaps the court's decision has surprised onlookers so much because it happened in the UK. We're not living in a repressive autocracy with threatening media laws. While we have stringent libel laws, our freedom of expression extends far more widely than it does for many societies. Perhaps more than it does for most nations in the world - not least because the English language is understood by so many. Yet an award-winning blogger, whose voice, it could be argued, aided the democratic process (see Seaton's article), was not able to stay nameless.

To what extent it affects UK bloggers' future privacy and right to anonymity remains to be seen. I shall report back. In the meantime, all those who are blogging anonymously might do well to take a look at Global Voices Advocacy's guidelines … then they might stand a chance of keeping it that way. Perhaps taking up jiu-jitsu in a Lancashire town, and then writing about it, was a reckless decision on Horton's part.

Please do add any other good links below.

Friday, 17 July 2009

Profiles of top libel specialists in UK

When legal letters threatening action for defamation arrive in an editor's in-tray, the names of certain lawyers can induce a queasy feeling. Robert Verkaik, The Independent's Legal Editor, profiles the libel specialists.

From The Independent
Defame academy: The libel specialists
By Robert Verkaik, The Independent's Legal Editor
Monday, 07 July 2008
Keith Schilling, senior partner of Schillings.

At the beck and call of some major and some very minor celebrities, Schilling has established himself as the "must have" libel lawyer for soap stars and footballers' wives alike. Rubbing noses with the A to Z-listers has also given Schilling a heightened sense of his own stardom, evidenced by an all-year tan and expensive hair highlights.

His firm has a reputation for browbeating newspaper editors which has earned Schilling the sobriquet, "Prince of Darkness." But the firm's aggressive billing policy backfired in 2006 when a judge was dismissive about his use of press cuttings to support his high fees.


Sienna Miller and Naomi Campbell jostle with Noel Edmonds and Michael Flatley for Schilling's personal attention. His big legally significant case was the libel claim by Roman Polanski against Vanity Fair over allegations that Polanski seduced a Scandinavian model just days after his new wife, Sharon Tate, had been murdered. The pint-sized film director successfully won damages against the magazine in the High Court without ever setting foot in the UK.

Nigel Tait, long-standing partner at Carter-Ruck.

Since the retirement and subsequent death of the firm's founder, Peter Carter-Ruck, Tait has steered the firm into pole position on the defamation law firm grid. This achievement is all the more remarkable given predictions of the practice's own demise following a very critical court ruling concerning the way the firm had racked up costs in a case against the Sunday Telegraph. In 2004 the High Court described fees charged by the firm, up to £750 an hour, as "extravagant" and called for a cap on libel costs. The court warned that such high level of fees could have "a chilling effect" on investigative journalism.


The firm is acting for Tesco in its libel and malicious falsehood claim against the Guardian newspaper in which the paper investigated tax avoidance schemes set up by the supermarket giant to protect its massive profits. Tait prefers to talk about the time he represented a six-year-old-boy in a £35,000 libel claim against the Sun – the youngest ever claimant.

Adam Tudor, partner at Carter-Ruck

In a field of law which has a reputation for producing colourful and flamboyant characters, Tudor remains stubbornly dour and humourless. According to those who have to deal with "trivial point scoring" legal correspondence the experience is a joyless one. Recently told a newspaper that if he hadn't been a lawyer he would have joined the police force. "They often (and on occasion deservedly) get a bad press, [but] they serve a crucial role in the community and in society," Tudor earnestly told the interviewer.


Most recently acted for the McCanns in their unobstructed £550,000 libel victory against Express Newspapers. Wasting no time in taking centre stage Tudor, who is also a solicitor advocate, donned legal costume to address the court directly on behalf of his well-known clients.

Alasdair Pepper, partner at Peter Carter-Ruck

Pepper has been at Carter-Ruck since he qualified in 1984. At nearly 7ft tall he is, according to one of those on the wrong end of his "turbo aggressive" legal correspondence, as pompous as he is tall. "Why use one word when ten will do, is his motto," claims another. Pepper is the brains behind Carter-Ruck's early warning system, through which the firm helps clients deal with unwanted press interest before it hits the papers. The firm says clients like him and he has a "no nonsense" approach to litigation.


Has made a name for himself representing former England footballers, including Kevin Keegan (who won £150,000) and Alan Shearer. Also acted for Ken Bates in his defamation claim against the London Evening Standard.

Gerrard Tyrrell, senior partner at Harbottle & Lewis

His reputation for taking no prisoners in matters of libel litigation has won him few friends in Fleet Street. "Comes across as a head boy by trying to make the most of very small points," says one solicitor who regularly acts for Fleet Street. "The last time I dealt with him he started reciting the telephone number of Press Complaints Commission down the phone. When I asked him what he was doing he said if I didn't accept his argument I should ring the PCC to get their perspective of the rights and wrongs of the case," remembers a defendant editor.


Has recently picked up the Clarence House brief and now regularly acts for the Prince of Wales, Duchess of Cornwall and Princes William and Harry.

The firm's hard-won royal connections are somewhat tarnished by its association with Beckingham Palace, home to Britain's alternative royal family, Posh and Becks. Last year Tyrrell acted for Victoria Beckham against Richard Desmond's Star magazine in which she was described a "grade-A bitch". Mr Tyrrell told the High Court that Star magazine had agreed to pay substantial damages and Beckham's legal costs and undertaken not to repeat the defamation.

David Price, David Price Solicitors & Advocates

Regarded as something of a maverick when he first opened the doors of his one-man defamation boutique ten years ago. In a direct assault on the Bar he qualified as a solicitor advocate so he could offer clients a one-stop shop. Now proudly boasts the ownership of a rare statue of Rumpole of the Bailey, the fictional figurehead of the Bar, who greets visitors to his Fleet Street offices. Price has grown the firm into one of the most successful defamation outfits in the market. "He has one of the finest libel brains in the business, but he doesn't rub your nose in it," says a defamation defence lawyer.


The fact that Max Clifford, the king of tabloid PR, prefers Price to represent him in his libel dealings with the media says it all. Other clients include Paul Burrell, Samantha Janus and Kerry Katona.

Sarah Webb, head of defamation at Russell Jones and Walker.

Webb is one of only a handful of women who have made it in the highly macho world of claimant libel law. Other notable successes are Tamsin Allen of Bindman and Partners and Amber Melville Brown at David Price Solicitors & Advocates. Webb has built on her firm's long-standing representation of the police and is now the first port of call for police officers who believe they have been defamed by the media. Regarded as easy to deal with, Webb, married to a circuit judge, also has a reputation for being a little "horsey", an observation corroborated by the fact that she is a member of the Equine Lawyers Association.


Webb has since broadened her client list to include MPs, judges, public schools and senior civil servants. Recently acted for Michael Fuller when he was Assistant Chief Constable of the Metropolitan Police (he is now Chief Constable of Kent) against the Sunday Mirror which paid out in excess of £20,000.

Eddie Parladorio, partner at London law firm Statham Gill Davies.

A former solicitor with Schillings, Parladorio is regarded as a bit of a rough diamond among London's libel fraternity. "Don't mess with Eddie in or out of court," warns one leading litigator. Parladorio once complained police were tapping conversations he was having with one of his clients. He also caused a bit of stir at a legal bash a few years ago when he turned up on the arm of Ulrika Jonsson, shortly after she split up from Sven Goran-Erikson. Jonnson was a former client.


This month acted for Everton manager David Moyes who won libel damages over claims made in Wayne Rooney's autobiography "My Story So Far".

In the book Moyes was accused of a serious breach of trust towards a "young player under his management." But Parladorio told the High Court last month: "There was no breach of confidence or betrayal of trust by Mr Moyes."

Nick Armstrong, partner at Charles Russell

Claims never to have lost a libel trial. Has a real insight into how newspapers work after a 10-year stint at a firm acting for Times Newspapers. Only picks up the phone to newspapers when his client has at least a reasonably good case. "Never points the gun of litigation unless he means to fire it," says one lawyer.


Acted for former England manager Sven Goran Eriksson and his agent over the Mazher Mahmood News of the World sting when Sven was lured to Dubai to meet a fake Sheikh. The action was resolved with an apology to the former football manager plus all his costs and an undisclosed damages payout to charity. Continues to look after the FA and now represents Fabio Capello as well as a range of soap stars.

New internet watchdog can order bloggers to take down offensive messages or photos

Internet users will be protected from abusive bloggers and malicious Facebook postings under proposals to set up an independent internet watchdog, The Daily Telegraph has learnt.

New internet watchdog to police Facebook
By Nicole Martin, Digital and Media Correspondent
The Daily Telegraph
Published: 29 July 2008
The body, made up of industry representatives, would be responsible for drawing up guidelines that social networking sites, the blogosphere, website owners and search engines would be expected to follow.
The recommendation is one of several that the House of Commons culture, media and sport select committee is expected to make in its long-awaited report on harmful content on the internet and in video games.

Under the proposals, the new internet watchdog would operate in a similar way to other industry bodies such as the Press Complaints Commission, which enforces a code of practice for the UK newspaper and magazine industry, covering accuracy, discrimination and intrusion.
The watchdog would not have any statutory powers to impose fines but would investigate complaints and most likely publish its decisions in instances when its guidelines have been breached.
It is understood that it would also be able to order bloggers and social networking sites such as Bebo and MySpace to take down offensive messages or photographs.
A source who has seen the report said that the committee wanted to give the public "a form of redress" "At the moment consumers don't know where to go if they want to complaint about something they have seen on the internet," the source said. "The absence of any industry body is leading to a great deal of confusion and to widely differing practices.
"The idea is that a self-regulatory body like the Advertising Standards Authority would be set up to make sure that members, including, internet companies and search engines, subscribe to the code and abide by rulings."
The proposals follow a rash of complaints about malicious and inaccurate postings on Facebook and other social networking sites.
A British businessman was last week awarded £22,000 libel damages from a school friend who made false accusations against him on a fake Facebook profile.

Mathew Firscht launched the High Court action after inaccurate claims about his sexuality and political viewers were posted on the site.

A woman also recently claimed that her life had been destroyed by strangers who stole her identity and set up a Facebook profile describing her as a prostitute.

Kerry Harvey, 23, received unsolicited calls from "punters" who found her details, including her date of birth and mobile phone number, on the site.

Proposals for an internet watchdog come only weeks after the Government pledged to set up a new UK Council for Child Internet Safety made up of figures from the Government, children's charities, parents and young people.

The council, which will report to the Prime Minister, was one of the recommendations made by Dr Tanya Byron, the television psychologist, in her Government-commissioned report on the dangers of video games and unsupervised use of the internet.

Ministers also plan to launch a £9 million advertising campaign to raise awareness of the internet. Dr Byron's report urged parents to take an interest in what their children were watching online.

She said that a "digital divide" was developing within families as children mastered the internet and video games while their parents, grandparents and carers too often had little clue about the material they were looking at.

I've been left a rather disgusting message attacking my sexuality on facebook from someone I dont even know ..i complained to facebook 3 times..and guess what ..NO REPLY. I'm thinking of taking it further and this whole watchdog group couldnt come at a better time. - iestyn on August 14, 2008

Hear! Hear! Kay Tie. There are a lot more people who agree with what you say than those opposed to freedom of speech think. Our day will come! - Victimlesscriminal on August 03, 2008

You know why this is happening: the internet is libertarian by nature, the Left has few quality blogs, and so the usual coalition of the Left will crush opposition by legislation. Cutting out robust criticism is a direct attack on democracy. The Left always go too far and sometimes they go beyond the ability for democracy to restrain them, as happened in Spain in the '30s. Let us hope that the Labour Party disintegrates before things get nasty. - Kay Tie on July 30, 2008

Related Articles

Defamation on the internet - Court order can be obtained requiring site operator to disclose a commentators identity

Damages For Chat Room Insults
By Rizwan A. Yusuf, Solicitor, Eversheds, Direct Dial: +44 (0) 113 200 4700
08 May 2006 (via Legal
Michael Keith-Smith, a former Conservative party member was recently awarded £10,000 damages in a libel action brought after insults posted in an internet chat room.

According to reports Keith-Smith was debating on the Iraq war on a discussion board, when Tracy Williams, who used a pseudonym to hide her identity, labelled Keith-Smith, a sexual offender, racist bigot, Nazi and other insults. Keith-Smith obtained a court order forcing Yahoo!, who hosted the discussion board, to reveal the identity of Williams, and then successfully sued for damages.

In assessing the damages, the judge took account of Keith-Smith's upstanding reputation and his commitment to work with educational institutions and charities. £5,000 was awarded as general damages. The remaining £5,000 was awarded as aggravated damages due to the behaviour and contempt of Williams. Williams was also ordered to pay costs of £7,200. Although some observers have commented that this case will open the floodgates to similar actions and place constraints on freedom of speech, the judgment confirms that the law of libel applies to the Internet as equally as any other medium.
- - -

From Times Online
March 21, 2006
UKIP candidate wins £10,000 for internet libel
By Philippe Naughton and PA News
A prominent member of the UK Independence Party won an unprecedented £10,000 in libel damages today from a woman who waged an abusive campaign against him on an internet bulletin board.

Michael Keith Smith, who contested the Portsmouth North constituency at the last general election, brought High Court proceedings against Tracy Williams, who was a contributor to the same Yahoo! discussion board.

Ms Williams, of Tomlinson Close, Oldham, Lancashire, used a pseudonym to post claims that the 53-year-old chartered surveyor was a "nonce", a sexual offender, a racist bigot and a Nazi.

Addressing him as "Lardarse" or "Lardbrain", she also alleged that he had sexually harassed a female co-worker, had been charged with soliciting boys and cottaging and that he was a sexual deviant of the most perverted kind.

In June 2004, Mr Keith Smith, of Castle Street, Portchester, Fareham, Hants, obtained a court order requiring the site operator to disclose Ms Williams’s identity. Legal proceedings then started which only served to provoke her into more "frenzied abuse", said Judge Alistair Macduff.

He said that Ms Williams, who was not in court and did not file a defence to the action, had not sought to justify her statements which were clearly seriously defamatory. They continued well into 2005.

Assessing damages, he said that Mr Keith Smith, who had given expert evidence in the courts and served on committees for charities and schools, had a reputation of some integrity.

He said that although the libels were available to the whole world through the internet, it was likely that few people had read them and many of those who did would have dismissed them as "ramblings".

Nevertheless, he awarded Mr Keith Smith £5,000 general damages plus £5,000 aggravated damages to reflect the way Ms Williams - who had met a request for an apology with contempt - had behaved.

He granted an injunction preventing the publication of the same or similar libels and ordered Ms Williams to pay the costs of the action, which Mr Keith Smith put at £7,200.

It is believed to be the first time that the High Court has awarded damages for defamatory comments posted on an internet bulletin board, although a retired teacher won £1,250 in damages at Lincoln County Court in May 2002 for comments posted about him on the website Friends Reunited by a former pupil.

Mark Thomson, a partner at libel specialists Carter-Ruck, said that there had been many similar complaints about defamation on the internet. But he said: "Most of these cases go away quite quickly - people pull down the allegation - so it's quite rare that people actually sue over internet comments."