Lord Neuberger, President of the Supreme Court, recently gave a lecture at ‘Conference5RB’ in which he discussed the importance of protecting internet users’ free speech and their right to anonymity. In doing so, he also recognised the need to identify the duties and responsibilities of those anonymous authors.Charlie_Tomlinson_ph

Lord Neuberger’s speech was addressed to media lawyers and journalists in London. The full speech can be read here.

Lord Neuberger delivered an engaging and thought-provoking lecture. In his speech he drew comparisons of today’s anonymous bloggers with the seventeenth century political writer ‘Junius’. Junius was an early champion of press freedom and free speech and “a strident critic of the government”, and his identity remains a mystery. He recounted the view of Junius’ contemporaries, that he drew strength from his anonymity and his criticism of those in power prompted both political and legal change.

Lord Neuberger then went on to discuss anonymous blogging in the context of the Internet:

“The Internet offers an unprecedented number of people the capacity to publish with ease, at little or no expense and, perhaps most importantly, with relative anonymity.”

He commented on how anonymous blogging in the political sphere has thrived, and gave the example of the previously anonymous political blogger ‘Guido Fawkes’ who was unmasked by the Guardian after only five months.

Lord Neuberger then considered the press’ interest in knowing the identity of anonymous authors and quoted Lord Rodger in In re Guardian and Media Ltd & Ors [2010] UKSC 1:

“What’s in a name? ‘A lot’, the press would answer.”

He noted that the court recognises the press’ interest in publishing names of anonymous bloggers in certain circumstances. Lord Neuberger cautiously cited one journalist’s argument:

“Perhaps the occasional outing is just the level of control that the blogging community needs.”

Lord Neuberger also raised the question of whether anonymous speech is even capable of protection in the Internet age, and remarked on Mr Justice Eady’s conclusions in Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB), that bogging is a public activity with no reasonable expectation of privacy. In contrast, he also recounted another case in which an anonymous blogger’s identity was protected from being revealed by his solicitors on the basis that it was confidential information.

Lord Neuberger then discussed anonymous speech and privacy on the Internet in the context of Convention rights. He considered the relationship between balancing art 8 (right to privacy) and art 10 rights (freedom of expression). He cited other jurisdictions where the introduction of real-name registration to some blogging/social media sites has led to unpopularity (China) and loss of personal data (South Korea).

He also considered how under English and European Law, art 8 and 10 tensions will always exist where the identity of an author is a matter of public interest. In addition, he made the point clearly that Article 10 does not expressly protect press freedom, rather it is the public’s right to receive accurate information. He then suggested that an anonymous blogger should enjoy protection rivalling the protection of anonymous press sources.

Lord Neuberger also spoke about the difficulty of enforcing the law in relation to online activity. He suggested perhaps art 10(2) supplies the answer when it states the right to freedom of expression “carries with it duties and responsibilities” and said:

“It might be suggested that developing the law on the duties and responsibilities of anonymous speech is to be preferred to the chilling effect created by fear of exposure.”

He cited the decision in Kennedy v The Charity Commission [2014] UKSC 20, among others, as demonstrating that the common law is developing alongside Convention rights.

In Lord Neuberger’s conclusion, he emphasised that the rights of Internet users “must be protected robustly” and that “in an Internet age the institutions of the press do not have a monopoly on speaking truth to power”. To summarise with his final words:

“The law must reflect the importance of protecting this new platform for expression while recognising the need to determine the duties and responsibilities of those who exercise these vital rights.”

As ever with such extra-judicial lectures, the views expressed are Lord Neuberger’s own, and do not necessarily reflect the position of the UK Supreme Court.