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No Reasonable Expectation of Anonymity?

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Abstract:

This commentary critiques The Author of a Blog v Times Newspapers [2009] EWHC 1358 (QB), [2009] EMLR 22 in which Eady J held that English law does not protect the anonymity of a blogger because blogging is a 'public activity'. It argues that Eady J too readily concluded that the claimant had 'no reasonable expectation of privacy', whereas this case required further consideration of a number of difficult questions about the relationship between 'privacy' 'anonymity' and 'identity', and guidance on some of these issues could have been sought from the Article 8 ECHR Strasbourg jurisprudence.

The commentator argues that anonymity-related interests can easily be accommodated into the misuse of private information cause of action. The misuse of private information cause of action asks whether the claimant had a reasonable expectation of privacy — and the commentator argues that where an individual has chosen to remain anonymous and has taken steps to ensure that his or her identity is not disclosed, this should be relevant to the question of whether the claimant had a reasonable expectation of privacy.

Finally, the commentator argues that anonymity is a state of public privacy, and that one can only experience anonymity if one is to some extent interacting with or exposed to others. Thus to conclude that there is no expectation of anonymity if one is engaging in a public activity is to seriously curtail anonymity.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/175776310794389418

Publication date: December 1, 2010

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