The President of the Supreme Court has delivered a very interesting address on the protections that should be afforded to what might be termed the “new Fourth Estate” – journalism on the internet. The following summary does not do justice to his speech but is meant to act as a taster – download the full text of his talk here.
Lord Neuberger explores the interrelationship of privacy and freedom of expression, particularly in the light of developments in IT, and especially the internet. He recalls a colourful eighteenth century figure who contributed a series of letters to a widely disseminated journal under the pseudonym of “Junius”. He managed to make such effective attacks on public figures he brought about the resignation of the Prime Minister, the Duke of Grafton, in 1770. Because of his anonymity this character was able to make criticisms of the powerful for which others of his time faced prosecution.
Junius offered a voice of firm if sometimes scurrilous criticism, prompting both political and legal change. He is rightly remembered as one of the greatest political writers in an age dominated by great figures, yet his identity [still] remains a mystery.
And it is this lack of traceability that links Junius with today’s bloggers. Print journalists are – with the exception of writers for The Economist – known figures. But forty percent of the world’s population use the internet, and despite initial expectations that bloggers and tweeters could hide behind pseudonyms, it has turned out to be extremely difficult for internet writers to maintain their anonymity. The public and the courts increasingly recognise the press’ interest in publishing the names of individuals in appropriate circumstances. Lord Neuberger cites as a recent example of the successful application by news organisations in setting aside reporting restrictions in the Court of Protection (a context where judgments are regularly anonymised) in order to be able to identify individuals involved in litigation (The Public Guardian v JM & Associated Newspapers Limited  EWCOP 7; The Press Association v Newcastle Upon Tyne Hospitals Foundation Trust  EWCOP 6. These, and other decisions restricting the right to confidentiality in the blogosphere do, in Neuberger’s words, “raise the question of the extent to which anonymous speech of the sort enjoyed by Junius is even capable of protection in the Internet age”:
The irony is of course that while the Internet supports freedom of expression by allowing (relatively) anonymous speech, that very technology has eroded this anonymity. As Guido Fawkes and Night Jack can attest, today’s anonymous bloggers are less able to protect their identities than was the mysterious eighteenth century Junius.
It is a truism that the conflict between the right to privacy and the right to freedom of expression is often only apparent: in fact your right to say things, particularly giving voice to matters in the public interest, is entirely dependent on your right to remain anonymous. In Convention terms, there should be no automatic “trumping” of Article 8 by Article 10. As Lord Neuberger points out, the Bureau of Investigative Journalism is challenging domestic laws (specifically the Regulation of Investigatory Powers Act 2000) in Strasbourg in expedited proceedings. It is of “some interest” that this case is being pursued on both Article 8 and Article 10 grounds.
To resolve this apparent conflict between Articles 8 and 10, Neuberger suggests a greater focus on the restrictions on press freedom under Article 10(2), in other words, that developing the law on the duties and responsibilities of anonymous speech is to be preferred to the chilling effect created by the fear of exposure. The rights enjoyed by users of the Internet, must, in appropriate circumstances, “be protected robustly”.