Nearly Legal

[edited 19 Aug]

A disclaimer - Friday evening, wine etc.

One of the odd revenges of old media against the upstarts appears to be the revelation of the real person behind the anonymous or pseudonymous blog. This blog is the latest victim of the dramatic expose. There is, of course, a huge amount of hypocrisy involved in this, given the anonymous diaries, reviewers and fake sheiks littering the inkies.

I’m not going to comment on the fact that it is particularly blogs about an active sexual existence by women that are the prime target for, erm, unveiling, beyond suggesting that apparently witch finding lives on. The very clear feminist point has already been made, not least by “Abby Lee” herself.

I’m also not going to comment on the fact that it is mainly ‘blogs that have been turned into books’ that are targeted, beyond the obvious fingerpoint at the jealousy of any journo for someone, particularly an amateur, with a book contract, when their own effort is either stalled or rejected.

What interests me, and I suppose it is partly self interest, is the fraught conjunction of anonymity, confessional, freedom of expression, privacy, veracity, self-exposure and unwanted exposure involved here. What follows is something of a tiptoe around the issues of blogging, anonymity, authenticity, ethics and privacy.

1. Veracity. In the last couple of centuries or so, we’ve somehow decided that truth is assessed by the actual person speaking it. This person must be identifiable and individual. This is particularly so if what is being described is anecdotal rather than abstract or empirical (nobody is fussed about pseudonymous mathematicians).

This might make a certain sense where the speaker claims access to important inside knowledge (or does so in the form of a Roman a Clef, Joe Klein in respect of Primary Colors, for instance). But in many instances of everyday truth telling, whether because you are an employee, likely to be ridiculed, or your material demands anonymity for yourselves and others, veracity depends on being unidentified. In these cases, surely assessment of truth depends on the quality, texture and detail of the voice telling it?

We’re not used to this, we want to know who is speaking - particularly when it comes to politics, money and sex (Will the real Belle de Jour please stand up etc.?). Politics and money, I can understand. The sex one puzzles me only to the extent that the routine backlash misogyny against women being more or less in charge of sex while being quite bright puzzles me.

This vaguely leads on to:

2. Responsibility or ethics. I’d suggest that if one claims anonymity oneself, then a certain duty is owed to others who might be possibly be identifiable in what is written. This includes partners, friends, co-workers, employers, employees and anyone else who might be identified in the blog. Most employee bloggers who have got into trouble have somehow made their employer identifiable (not all, of course), and I would have to say that unless there was a specific whistleblowing issue, this might not be unreasonable, (although of course it could be), and quite possibly in breach of contract.

I have taken care over anonymity, I must admit. All stories in this blog are true, but details are changed and combined, and time shifting has happened. I have to protect myself in regard to my job/future jobs, yes, but also I must consider my clients, colleagues and employer and I do not think that any bystanders or walk-ons who feature in what I write should be personally identifiable. This also means that many of the most interesting stories have to go by the wayside, alas.

Anonymity won’t protect against committing libel, of course.

3. Public interest? Now, where an anonymous blogger has taken care and been responsible, and where who they are as an individual is irrelevant for the value or truth of what they have written, what possible interest is there in exposing them? Obviously, I’m discounting the usual purient or vindictive motives.

Surely, there can be no public interest in revealing the author unless what is written addresses matters of genuine public concern, and then we are talking whistleblowing or insight into the lies of power.

A woman’s honest, considered and thoughtful account of her sexual life, a magistrate’s account of his (I think) experience on the bench, a police officer’s blog, even my own humble effort, in each case anonymity is necessary for the truths to be told or opinions to be put forward.

If there is no libel involved, if there is nothing that would identify others or employers, no overriding interest, wherefore lies the public interest that the inkies claim in exposing the identity of anonymous bloggers?

4. Privacy. It might seem odd to talk about privacy in relation to a form, the blog, that is often publicly confessional. But privacy is about the control over the disclosure of information about oneself and the manner of disclosure. Outing an anonymous/pseudonymous blogger runs roughshod over that control of disclosure.

Something of this seems to be involved in Douglas v Hello! 2003, where Lindsay J. held that the intention to publish information does not preclude a right to privacy. (I’m not sure that the fusion of breach of confidence, equity and Art 8 in Douglas v Hello will suffice though.)

When News International can attempt a (thankfully failed) argument against publication of images/details of the ‘fake sheik’ on the grounds of privacy and then a few weeks later glory in revealing the identity of someone who is a sexually active woman (oooh) blogger, I’d suggest that anonymity and privacy in the context of publishing information or opinion needs to be seriously addressed. The issue is only going to get larger and larger as many more people take to publishing on t’interweb.

Things seem to be rather different in the States. McIntyre -v- Ohio Elections Commission 1995 apparently found a right to anonymous free speech in the First Amendment. Has anyone followed the developments of this?