*W1021706F1PV1*

W1021706F1PV1

W102/H

Module Examination 2017

LAW: CONCEPTS AND PERSPECTIVES

Thursday, 8 June 2017 2:30 pm – 5:30 pm

Time allowed: 3 hours

This examination is divided into three parts, all of which should be

attempted.
PART 1 contains 20 questions; you should attempt ALL questions.
PART 2 contains four questions; you should attempt TWO questions.
PART 3 contains three questions; you should attempt ALL questions.
Part 1 carries 20% of the total marks. Part 2 carries 40% of the total
marks. Part 3 carries 40% of the total marks.
You are advised to spend approximately 40 minutes on Part 1, 60
minutes on Part 2 and 60 minutes on Part 3. This will give you 10
minutes for initially reading the examination paper and 10 minutes for
checking your answers at the end of the session.
You are provided with a computer marked examination (CME) form and
an answer book. Part 1 is answered on the CME form. Answer Parts 2
and 3 in the answer book. Additional answer books are available from
the invigilator if required. Start each question on a new page.
At the end of the examination
Check that you have written your personal identifier and examination
number on each answer book used. Failure to do so will mean that
your work cannot be identified.
Put all your used answer books together with your signed desk record
on top. Fasten them in the top left corner with the round paper fastener.
Attach this question paper and the CME form to the back of the answer
books with the flat paper clip. It is important that the flat paper clip is
used with the CME form since the computer cannot read CME forms
with punched holes.

Copyright © 2017 The Open University

 Instructions for completing the CME form

 You will find one CME form provided with this paper. The invigilator has a
supply of spare forms if you should need any.

 You must use an HB pencil to make entries on the CME form. If you make
any smudges or other spurious marks on the form which you cannot cancel
out clearly, you should ask the invigilator for a new form, and transfer your
entries to it.

 On Part 1 of the CME form you must write your personal identifier (NOT the
examination number) and the assignment number for this examination
(W102/81). You should also pencil across the cells in the two blocks in Part
1 of the CME form corresponding to your personal identifier and assignment
number given above. On the sample CME form opposite Part 1 has been
completed for a fictitious student so that you can see how to complete this
Part of the form.

 For each question you must pencil across either a single answer cell or the
‘?’ cell.

 If you ‘don’t know’ the answer to a question, pencil across the ‘?’ cell.

 If you think that the question is ‘unsound’ in any way, pencil across the ‘U’
cell, in addition to pencilling across either an answer cell or the ‘?’ cell.

 We suggest that, in the first instance, you mark up the sample CME form, on
the opposite page. You can then check your answers before transferring
them to your CME form.

 You should note that NO ADDITIONAL TIME will be allowed at the end of the
3-hour period for transferring your marks to the CME form. Time for this is
included within the 3 hours.

 Failure to follow the above instructions may mean that we shall not be able to
award you a mark for Part 1 of the examination.

Note:
You may use a page at the back of any of your answer books for any rough work
required in Part 1. Please note that this rough work will not be considered by the
examiners.

2 W102 June 2017

 Sample CME Form

W102 June 2017 TURN OVER 3

PART 1 You must answer ALL questions from this part. Part 1 carries 20% of the total
marks.

Question 1 Which of the following is the modern term used to describe a person bringing a
civil case to court?
a) Plaintiff
b) Claimant
c) Complainant
d) Prosecutor

Question 2 Which principle is taken from Lord Atkin’s speech in Donoghue v Stevenson
[1932] AC 562?
a) The ginger beer principle
b) The manufacturer principle
c) The neighbour principle
d) The remoteness principle

Question 3 Which of the following bodies is the prosecution authority for tax evasion?
a) Office of Fair Trading
b) Her Majesty’s Revenue and Customs
c) Financial Conduct Authority
d) Environment Agency

Question 4 In the civil justice system, actions with a value of between £10,000 and £25,000
will usually be assigned to the:
a) Train track
b) Fast track
c) Multi track
d) Small claims track

Question 5 Which of the following will a display of an article with a price on it in a shop
generally constitute?
a) An offer
b) Acceptance
c) A contract
d) An invitation to treat

4 W102 June 2017

Question 6 Which statute brought into force the Jackson Reforms to the civil justice system?
a) Supply and Appropriation (Main Estimates) Act 2012
b) Legal Aid, Sentencing and Punishment of Offenders Act 2012
c) Protection of Freedom Act 2012
d) Consumer Insurance (Disclosure and Representations) Act 2012

Question 7 Which of the following is not normally taken into account when determining
whether an agreement between two states is a treaty?
a) Whether the parties to the agreement are recognised as subjects of
international law with treaty making powers
b) Whether the agreement is in writing
c) Whether the agreement is already state practice
d) Whether the agreement is governed by international law

Question 8 In what year did the age of consent for homosexual sexual activity between men
become the same as the age of consent for heterosexual sexual activity?
a) 1967
b) 2000
c) 2014
d) 1953

Question 9 Which of the following statements best reflects the approach set out in the Code
for Crown Prosecution Service?
a) Those suspected of offences should be prosecuted
b) Those suspected of offences should be prosecuted if there is a realistic
prospect of conviction and it is in the public interest to prosecute
c) Those suspected of offences should be prosecuted if there is a realistic
prospect of conviction
d) The CPS should only prosecute if they are certain they will obtain a
conviction

Question 10 Which of the following is an inaccurate statement concerning human rights?

a) Human rights are indivisible and interdependent
b) Human rights only apply to people who do not break the law
c) Human rights are applicable to all human beings, without discrimination
d) Human rights are inalienable

W102 June 2017 TURN OVER 5

Question 11 Which of the following statements is correct?
a) In England and Wales the legal profession is split into lawyers and solicitors
b) In England and Wales the legal profession is split into lawyers and legal
executives.
c) In England and Wales the legal profession is split into judges and politicians
d) In England and Wales the legal profession is split into barristers and
solicitors

Question 12 Which body oversees the regulation of the legal professions in England and
Wales?
a) Solicitors’ Regulation Authority
b) Bar Standards Board
c) Legal Services Board
d) Legal Ombudsman

Question 13 Which of the following does not have a regional human rights court?
a) Europe
b) The Americas
c) Africa
d) Antarctica

Question 14 Which of these is not a key feature of a civil law system?

a) A written constitution
b) A separate court for each code
c) Rights expressly conferred on citizens by the law
d) An adversarial court system

Question 15 Which of the following bodies cannot be described as a devolved legislature?

a) The Westminster Parliament
b) The Welsh Assembly
c) The Scottish Parliament
d) The Northern Ireland Assembly

Question 16 Which one of the following is not one of the essential elements of a contract?
a) Offer
b) Satisfaction
c) Consideration
d) Acceptance

6 W102 June 2017

Question 17 Which of the following statements is correct?
a) Civil court proceedings are most frequently used for resolving civil disputes
between individuals and government departments.
b) Civil court proceedings are most frequently used for resolving civil disputes
between politicians.
c) Civil court proceedings are most frequently used for resolving civil disputes
between individuals (whether natural persons or companies).
d) Civil court proceedings are most frequently used for resolving civil disputes
between businesses (whether public or private companies).

Question 18 Which one of the following is not a qualifying characteristic of the state as a
person of international law outlined in Article 1 of the Montevideo Convention on
the Rights and Duties of States 1933?
a) A permanent population
b) A defined territory
c) Democratically elected representatives
d) Government

Question 19 Which of the following made slavery illegal across the British Empire?
a) The French Declaration of the Rights of Man and Citizens 1789
b) The Abolition of the Slave Trade Act 1807
c) Slavery Abolition Act 1833
d) The Convention to Suppress the Slave Trade and Slavery 1926

Question 20 Which of these is not a feature of Alternative Dispute Resolution?

a) Conducted by subject specialists
b) Strict rules of evidence
c) Flexibility
d) Solution focused

W102 June 2017 TURN OVER 7

PART 2 You must answer TWO questions from this part. Part 2 carries 40% of the marks.

Question 21 Explain the purpose and sources of international law.

(20 Marks)

Question 22 Section 24 PACE 1984 provides the following:

‘Arrest without warrant: constables
(1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to
commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be
committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has
been committed, he may arrest without a warrant anyone whom he has
reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a
warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of
it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is
exercisable only if the constable has reasonable grounds for believing that
for any of the reasons mentioned in subsection (5) it is necessary to arrest
the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the
case where the constable does not know, and cannot readily ascertain,
the person's name, or has reasonable grounds for doubting whether a
name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to
subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in
question;
8 W102 June 2017
 (e) to allow the prompt and effective investigation of the offence or of the
conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the
disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about
their normal business cannot reasonably be expected to avoid the person in
question.’

The Facts

Sean has been out for the day with friends and has been drinking heavily. He
decides to visit his brother-in-law Phil, with whom he had a recent disagreement
over a sum of money. Sean wants to try to ‘set things straight’. Debra, a local
police officer, observes Sean angrily knock on Phil’s door, shouting, ‘I want my
money or you’re going to pay!’
Frustrated that no one answers the door Sean walks down the alley behind Phil’s
house out of Debra’s view. Soon after, Debra hears the sound of breaking glass.
She walks into the alley to find Sean in an agitated state looking at the smashed
window. He has a brick in his hand and he looks ready to throw it. Debra arrests
Sean for criminal damage.
Later, that day Debra is called to a shop where Tom is attempting an armed
robbery. Debra, hears Tom shouting ‘give me your money!’ at the shopkeeper,
Paul, while threatening him with a gun. Debra arrests Tom for armed robbery.

End of facts

Explain whether the arrests of Sean and Tom are lawful.

(20 marks)

Question 23 Explain to what extent, if any, the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO) has affected access to justice in civil law in England
and Wales.
(20 marks)

Question 24 Consider the view, with reference to natural law and positivism, that the law
should have a moral foundation.
(20 marks)

W102 June 2017 TURN OVER 9

PART 3 You must answer ALL questions from this part. Part 3 carries 40% of the total
marks.

Based on the seen material that was made available to you (and is replicated in
the accompanying insert), and your study of W102, answer the following
questions:

Question 25 Explain in your own words Lord Neuberger’s argument concerning the tension
that exists between judges and journalists?
(5 marks)

Question 26 Explain in your own words who Junius was and what he or she did. Outline Lord
Neuberger’s argument concerning the anonymity of Junius and freedom of the
press.
(10 marks)

Question 27 Evaluate, with reference to the lecture by Lord Neuberger, the argument that
there should be an absolute right to privacy for those who write internet blogs.
(25 marks)

[END OF QUESTION PAPER]

10 W102 June 2017

 W102/H

Module Examination 2017

LAW: CONCEPTS AND PERSPECTIVES

Seen material for use with Part 3, Questions

25, 26 and 27 of the Question Paper.

“What’s in a name?” – Privacy and anonymous speech on the Internet,

Neuberger, D (2014) “What’s in a name?” – Privacy and anonymous speech on
the Internet, Conference5RB Barristers Keynote speech. Kings Place, London,
30 September.

Copyright © 2017 The Open University

“What's in a name?” - Privacy and anonymous speech on the Internet

Conference5RB Keynote speech, 30 September 2014

Lord Neuberger, President of the Supreme Court

Introduction

1. Good morning. It is a somewhat daunting pleasure for me as a senior judge to be

addressing an audience of lawyers and journalists. Lawyers can take advantage of role

reversal and assess the quality of my submissions rather than having me pontificate on

theirs. But lawyers and judges work in the same neck of the constitutional woods,

whereas journalists occupy rather a different area. At least in the past, judges have

been prone to see journalists as being keen to seize on an incautious observation or a

remark which can be sensationalised out of context, and journalists have seen judges

as pompous and out of touch. The suspicion which judges and journalists have felt

about each other has been to some extent based on a failure to appreciate the nature

of the other’s role. But although our roles are very different, we share a very

important function, namely that of holding power, particularly governmental power,

to account.

2. Two legal topics which are of particular interest to journalists, and on which there

is therefore particular room for friction with judges, are freedom of the press and

privacy. Indeed, vocal journalistic antagonism to some judges’ decisions in court and

indeed some judges’ decisions out of court, illustrate the strength of feeling to which

the two matters can give rise.

3. While the right to respect for privacy (in article 8 of the Convention) and the right
1
 to freedom of expression (in article 10 of the Convention) are both of fundamental

importance they often give rise to conflict, or at least serious tension, particularly as

between journalists and the subjects of their articles. The courts are often called upon

to conduct a balancing exercise; as was said in Campbell v MGN, “both are vitally

important rights. Neither has precedence over the other”.1 Nowhere is this tension

more apparent than in the context of the privacy injunction.2 However, rather than

revisiting that well-worn topic, today I want to dig a little deeper into the

interrelationship of privacy and freedom of expression, particularly in the light of

developments in IT, and especially the internet.

A Seventeenth Century Mystery

4. Having mentioned that modern wonder the Internet I propose, somewhat

paradoxically, to start with a mystery which excited and exercised journalists and

lawyers in London more than two centuries ago. Many of you will work near Fleet

Street and so may be at least passingly familiar with that ancient watering hole “Ye

Olde Cheshire Cheese” on Fleet Street. The pub has had many notable patrons over

the centuries, not least Tennyson and Dickens, but for this morning’s purposes I want

to focus on just two, drawn from opposite ends of the late Eighteenth Century

political spectrum; the political theorist and statesman Edmund Burke, a Whig MP,

and the great writer and lexicographer Samuel Johnson, a famously high Tory.3

1
[2004] 2 AC 457 at [12] per Lord Hoffmann.
2
This is a topic upon which a committee on super-injunctions (which I appointed and chaired when Master of
the Rolls) reported in 2011. The Report can be found here: http://www.judiciary.gov.uk/wp-
content/uploads/JCO/Documents/Reports/super-injunction-report-20052011.pdf
3
I do not of course wish to caricature Burke’s political views and legacy, which as the Oxford Dictionary of
National Biography notes, defies “party political classification and remained a source of inspiration as well as
2
 5. In particular, I want to consider their respective reactions to one of the greatest

and most effective public writers of his time; the writer pseudonymously known as

“Junius”. Junius wrote a series of increasingly controversial anonymous letters

published in the pages of the Public Advertiser. He4 was an early champion of press

freedom and the legal protection of free speech as well as a strident critic of the

government; his public attacks probably contributed to the resignation of the Prime

Minister, the Duke of Grafton, in 1770. Members of the judiciary certainly did not

escape his vitriol. In one letter he wrote that:

“A judge under the influence of government, may be honest enough in the

decision of private causes, yet a traitor to the public.”

6. Junius’ campaign reached its zenith with a letter addressed to the King published

in December 1769, and which opened with the following words:

“Sir, —It is the misfortune of your life, and originally the cause of every
reproach and distress which has attended your government, that you
should never have been acquainted with the language of truth, until you
heard it in the complaints of your people.”

7. The letter went on to complain of the “continued violation of the laws” and an

“enormous attack upon the vital principles of the constitution”. It is hard to imagine a

more direct example of speaking truth to power. The publication of this letter led to

the celebrated trial of Henry Woodfall, publisher of the Public Advertiser, for seditious

libel.5 The case came before Lord Mansfield in 1770. Lord Mansfield, who is now

regarded as one of the greatest ever Lord Chief Justices, was himself a favourite target

argument to generations of Conservatives and Liberals”: ‘Burke, Edmund (1729/30–1797)’, Oxford Dictionary
of National Biography (OUP, 2004).
4
I adopt the masculine as the gender of his pseudonym. The gender of Junius is, like Junius’ identity, unknown.
5
The consequences of which are reported in R v Woodfall (1770) 5 Burrow 2661.
3
 of Junius, who once termed him “the worst and most dangerous man in the

kingdom”.

8. In one of his letters to Mansfield, Junius had himself noted that the oppression of

an individual may be productive of good, citing the origins of the habeas corpus Act in

the oppression of an obscure individual. It is perhaps therefore appropriate that the

prosecution of Woodfall was also productive of good, leading to considerable public

debate over the law of libel, to Thomas Erksine’s legendary defences of the Dean of

St Asaph in 1784, and of Stockdale in 17896 and ultimately to a beneficial change in

the law through Fox’s Libel Act of 1792.7.

9. Let us return then to our two figures in Ye Olde Cheshire Cheese, Burke and

Johnson. Many of Burke’s contemporaries believed Burke himself to be Junius.8 If this

were true, Burke’s speech before the House of Commons, extolling Junius’ “honesty,

his firmness, and integrity” would seem a little disingenuous.

10. Though he was much more critical of Junius’ views, Johnson was equally

impressed by his force and rhetoric. In 1771 Johnson wrote of Junius that his safety

was provided by “impenetrable secrecy” and enjoyed “all the immunities of

6
Erskine also famously defended Thomas Paine when he was prosecuted for the publication of the second part
of the Rights of Man in a speech containing an impassioned defence of the right to a legal defence even for the
most politically unpopular. See my earlier speech, “Lord Erskine and Trial by Jury”:
http://www.supremecourt.uk/docs/speech-121018.pdf.
7
At the time the prevailing but much-criticised view was that the question of whether speech was libellous was
a question of pure law. Therefore the jury were only entitled to decide upon the facts of publication, seriously
limiting the role of the jury in libel trials. However, in Woodfall’s trial, in an example of jury activism the jury
delivered a verdict of “Guilty of the printing and publishing only” which led to extensive debate at the Bar on
the effect of this verdict, and ultimately a mistrial. The 1792 Act finally abolished the much-maligned legal
doctrine
8
Another somewhat more convincing theory favours Sir Philip Francis.
4
 invisibility”.9

11. Both Burke and Johnson recognised that “Junius” drew much of his strength

from his anonymity; he 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

remains a mystery.

12. Johnson’s biographer and friend Boswell once asked Johnson whether this

shadowy figure was right to conceal his identity. Johnson’s offhand response

inadvertently anticipates the development of the law of confidential information:

“Supposing the author had told me confidentially that he had written Junius, and I
were asked if he had, I should hold myself at liberty to deny it, as being under a
previous promise, express or implied, to conceal it. Now what I ought to do for
the author, may I not do for myself?10”

From Junius to anonymous blogging

13. Let me now move forward two and a quarter centuries. Among the mainstream

press, the past decade has witnessed a focussing of attention on the personality of the

journalist, whether as columnists who become celebrities or celebrities who become

columnists. By-lines have been supplemented by sometimes page-length photographs

of the authors and journalists respond individually to comments left on web versions

of their stories. Micro-blogs such as Twitter have contributed to this trend. The

9
Thoughts on the Late Transactions Respecting Falkland's Islands (1771).
10
Boswell, Life of Samuel Johnson.
5
 Economist, whose articles are not credited to their author, is a notable exception to the

rule.

14. It is perhaps the bloggers rather than traditional journalists who most closely

resemble the anonymous Junius. 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. For many users, a Facebook or Twitter account

is at once a pulpit and a confessional. Furthermore, a number of factors make

permanently deleting material published on the internet difficult, leading some to go

so far as tentatively to suggest “expiration dates” for information. 11 Such radical

solutions aside, Internet users are increasingly astute to limit or prevent infringements

of their privacy; “private browsing” modes on Internet browsers prevent the storage

of information of browsing history. Others have sought legal remedies, as illustrated

by the recent, and to many commentators rather questionable, “right to be forgotten”

ruling.12

15. In the political sphere, anonymous blogging has thrived. To give a relatively well-

known example, the previously anonymous political blogger “Guido Fawkes” is

rather graphically credited with claiming the “scalps” of politicians including a serving

UK minister.13 However, this blogger barely maintained his anonymity for five

months before he was “unmasked” by the Guardian.14 To borrow the title from his

blog post on the subject, “So much for anonymity.” The irony is of course that the

11
As proposed by Viktor Mayer-Schönberger in Delete: The Virtue of Forgetting in the Digital Age.
12
Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja
González (C-131/12)
13
http://www.theguardian.com/politics/2009/apr/12/guido-fawkes-damian-mcbride
14
http://order-order.com/2007/02/12/so-much-for-anonymity/
6
 more popular and successful a blog becomes, the greater the interest in the identity of

its anonymous author, not least from the mainstream press. As was famously said by

the late and much lamented Lord Rodger in In re Guardian News and Media Ltd and

others15:

“What's in a name? ‘A lot’, the press would answer. This is because stories
about particular individuals are simply much more attractive to readers
than stories about unidentified people. It is just human nature. […] A
requirement to report it in some austere, abstract form, devoid of much of
its human interest, could well mean that the report would not be read and
the information would not be passed on. Ultimately, such an approach
could threaten the viability of newspapers and magazines, which can only
inform the public if they attract enough readers and make enough money
to survive.”

16. As Lord Rodger’s observations indicate, the courts will recognise the press’

interest in publishing the names of individuals in appropriate circumstances. For

example, this year we have seen news organisations succeeding 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.16

17. However, the perfectly legitimate interest in learning the identities of these

bloggers can fairly be said to lead to disquieting consequences, but there is room for

argument, within the media and outside. For example, a journalist in the Sunday Times

has written that “if bloggers were made aware that their anonymity was not always

15
[2010] UKSC 1.
16
See The Public Guardian v JM & Associated Newspapers Limited [2014] EWCOP 7; The Press Association v
Newcastle Upon Tyne Hospitals Foundation Trust [2014] EWCOP 6. Cf. A v BBC [2014] UKSC 25 where the
Supreme Court recognised a common law power to withhold the identity of a party or witness.
7
 absolutely guaranteed, then arguably they would be just a tiny bit more careful. So

perhaps the occasional outing is just the level of control that the blogging community

needs.”17 Given that this effectively describes a chilling effect, others no doubt would

argue that such a sentiment must be treated with the utmost caution.

18. Furthermore, this was said in defence of her outing the author of the

pseudonymously authored “Girl with a one-track mind”. Many people may that

knowing the author’s identity could scarcely be said to be in the public interest though

it may well have been of interest to the public.

19. This tension was tested in the English courts in Author of a Blog v Times Newspapers

Limited,18 which arose out of an application by a blogger to restrain publication of his

identity by the respondent newspaper. The blogger who, as a result of the judgment,

was identified as a detective constable, ran a blog known as “Night Jack” which made

various critical allegation and observations regarding police activity. Mr Justice Eady

concluded that blogging is essentially a public and not a private activity. As such, a

blogger did not enjoy a reasonable expectation of privacy. This decision cannot be

faulted as an application of our law of confidential information in its current state, but

it does 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.

20. If activities such as blogging, and perhaps by extension posting on social networks

and uploading photographs or videos to websites such as Flickr, Instagram and

YouTube, are to be characterised as a public activity, it may prove difficult for any

17
Anna Mikhailova, ‘As I found, you take on the bloggers at your peril’ Sunday Times (21 June 2009).
18
[2009] EWHC 1358 (QB).
8
 Internet users to argue subsequently that they have a reasonable expectation of

privacy, either in relation to their identity or more generally.

21. The NightJack saga has an interesting corollary in the context of media law. It was

later revealed that a reporter at The Times had used email hacking to discover

NightJack’s identity. The incident, including the High Court action, came under the

scrutiny of the Leveson Inquiry and led to a public apology from the editor of the

Times to the detective constable.19

22. In SRJ v Person(s) Unknown being the author and commenters of Internet blogs20 Sir David

Eady had to consider a conflict of confidences. The anonymous author of at least two

blogs had published confidential information belonging to the applicant. The

applicant sought to obtain the anonymous blogger’s identity from the blogger’s

former solicitors. The solicitors resisted this application on the basis that either the

author’s identity was subject to absolute legal professional privilege or was otherwise

protected as confidential information. The court held that in circumstances where it

was clear that protecting the blogger’s identity was of paramount importance when he

sought legal advice, the applicant's wholly legitimate interest in pursuing its legal

remedies against the blogger did not outweigh this duty of confidence. This result was

achieved under an entirely conventional application of well-established common law

principles on confidential information and without any resort to the protections

offered by Convention rights. It remains to be seen whether there are other

circumstances where a person's identity is "not simply a piece of neutral background

19
http://www.bbc.com/news/uk-16936408.
20
[2014] EWHC 2293.
9
 information" but rather is confidential information and protected as such.

Anonymous speech and privacy on the Internet

23. When I last spoke on a similar topic in 2012,21 about 2.4 billion people used the

internet. By the end of 2014, that figure is projected to have risen to 3 billion, or

about 40% of the world’s population.22 This provides unprecedented opportunities

for public speech. As was said by the US Supreme Court in Reno v ACLU in 1997:

“Through the use of chat rooms, any person with a phone line can become
a town crier with a voice that resonates farther than it could from any
soapbox”23

At an earlier stage in the same case the Internet was termed “the most participatory

form of mass speech yet developed” and thus deserving of the highest level of

protection.

24. Internet speech similarly engages Article 8 rights. As has often been noted, the

approach taken to Article 8 in both Strasbourg and the domestic courts goes far

beyond mere “privacy” and encompasses personal autonomy and self-development as

well as the right to develop relationships with others.24 The Internet offers

unprecedented opportunities for such self-development.

25. In the context of anonymous speech, an author’s article 8 rights reinforce his or

her article 10 rights. As the UN Special Rapporteur Frank La Rue noted in his report

21
This is a topic I have previously addressed in a speech to UK Association of Jewish Lawyers and Jurists’
Lecture on 28 November 2012. http://www.supremecourt.uk/docs/speech-121128.pdf.
22
http://www.internetlivestats.com/internet-users/
23
521 US 844 (1997)
24
See Buxton, ‘Private Life and the English Judges’ Oxford Journal of Legal Studies (2009) 29(3) 413
10
 to the Human Rights Council:25

“Throughout history, people’s willingness to engage in debate on

controversial subjects in the public sphere has always been linked to
possibilities for doing so anonymously. The Internet allows individuals to
access information and to engage in public debate without having to reveal
their real identities.”

26. However, this rapid development has made it easier than ever for both state and

non-state actors to access confidential information and communications by

individuals. This has led to something of a technological arms race. In China, users of

the Twitter-like microblogs called “Weibo” have introduced real-name registration

rules. This move has led to both direct and indirect censorship: this policy was so

unpopular that one Weibo began automatically to censor posts containing references

to real-name registration. Such policies can carry other risks. When South Korea

instigated a similar policy, a hacking attack led to the loss of the personal data of 35

million users.26 The gravity of such a loss is exacerbated by the connection with the

inclusion of real names; it is precisely for this reason that it is identifiable personal

information that enjoys the protection of European and UK data protection

legislation.

27. In the United States the right to anonymity has been carried further, in that

freedom of expression has been held to justify a “right to read anonymously” for

example in United States v Rumely.27 An example of users taking matters into their own

hands is offered by the development of “TOR”, a freely distributed technology which

25
A/HRC/17/27.
26
http://www.bbc.co.uk/news/technology-14323787
27
345 US 41, 57
11
 enables users to browse and communicate on the Internet with greater anonymity.

28. 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.

29. What then of legal protections? It is unsurprising that the most robust protection

of anonymous speech is to be found in US law. In McIntyre v Ohio Elections Commission,

a case on a statute prohibiting anonymous political literature, it was famously said by

Justice Stevens that:

“Under our Constitution, anonymous pamphleteering is not a pernicious,

fraudulent practice, but an honourable tradition of advocacy and of
dissent. Anonymity is a shield from the tyranny of the majority.”28

30. However, as the NightJack case illustrates, under English and European Law a

tension will always exist where the identity of the author is a matter of public interest

and its publication engages article 10 rights which may trump the author’s article 8

rights. However, it could be suggested that in very many cases the public’s interest in

knowing the anonymous author’s identity will be outweighed by the public interest in

hearing what they have to say.

31. A similar consideration exists in the context of confidential speech; the possibility

of surveillance is likely to give rise to a chilling effect. A piece of oft-repeated advice is

28
514 US 334 (1995).
12
 “don’t say anything on the Internet you wouldn’t shout in a crowded room”. But

there are very many things an individual should be able to say that he or she would

not wish to shout in a crowded room. This point was forcefully made in the

dissenting judgment of Chief Justice Rehnquist in the US Supreme Court case of

Bartnicki v Vopper29, which concerned the broadcast by a journalist of an illegally

intercepted telephone conversation between trade union officials. The majority of the

court ruled that the protection of privacy was outweighed by the First Amendment

protection of the publication of matters of public concern. The Chief Justice rejected

this analysis, arguing that:

“[The majority’s] decision diminishes, rather than enhances, the purposes

of the First Amendment, thereby chilling the speech of the millions of
Americans who rely upon electronic technology to communicate each
day.”

32. This 2001 case takes on a new complexion when one considers the discovery in

the last decade of the widespread use of phone-hacking in certain corners of the

media. In recent years journalists have themselves been victims of invasions of their

privacy. I understand that the Bureau of Investigative Journalism is challenging

domestic laws (specifically the Regulation of Investigatory Powers Act 2000) in

Strasbourg in expedited proceedings.30 It is of some interest that this case is being

pursued on both article 8 and article 10 grounds.

33. It is worth noting briefly that press freedom is not expressly protected by article

10 of the Convention, in contrast to the position under US law, where the First

29
532 US 514 (2001). Justice Scalia and Justice Thomas joined in his dissent.
30
http://www.thebureauinvestigates.com/2014/09/14/a-summary-of-the-bureaus-application-to-the-european-
court-of-human-rights/
13
 Amendment provides that “Congress shall make no law […] abridging the freedom of

speech, or of the press”31 To some extent Strasbourg has supplied this deficit, building a

body of jurisprudence circumscribing the nature and limits of press freedom as a

subset of article 10.32 A very clear example is to be found in the protection of

journalists’ source, notably in the Goodwin case.33 The cases following this landmark

decision illustrate that what is truly being protected in this context is the public’s right

to receive accurate information, not the press’ right to convey it.34

34. If this is a correct analysis of the rationale behind press freedom it could therefore

be suggested that, everything else being equal, the anonymous author of a blog should

enjoy protection rivalling the protection of anonymous press sources. One answer to

this view might be that the Strasbourg case-law has developed a wide body of

jurisprudence on the duties and responsibilities of the Press. This reflects article 10,

paragraph 2, which uniquely to the Convention, states that the right to freedom of

expression “carries with it duties and responsibilities”.35

35. It is well-recognised that those who use the internet are often unaccountable. It is

notoriously easy to breach court orders through online activity, and notoriously

difficult to enforce legal remedies against the perpetrators, not least because of the

31
For an enlightening though dated exploration of the significance of this provision under US law by an
associate justice of the US Supreme Court, see Potter Stewart, ‘Or of the Press’. For a more recent account see C
Baker, ‘The Independent Significance of the Press Clause under Existing Law’. Both are reprinted in Barendt
ed. Freedom of the Press (2009).
32
A sentiment admirably expressed in a speech given by Lady Justice Arden to Cardiff Law School; ‘Media
Intrusion and Human Rights: Striking the Balance’ : http://www.judiciary.gov.uk/wp-
content/uploads/JCO/Documents/Speeches/lj-arden-speech-media-intrusion-cardiff.pdf
33
Goodwin v UK (16/1994/463/544) (1996) 1 BHRC 81
34
See in particular Tillack v Belgium (20477/05) and Voskuil v Netherlands (64752/01) (2008) 24 BHRC 306
35
As noted in Egbert Myjer, a former Strasbourg judge, ‘About court jesters: Freedom of expression and duties
and responsibilities of journalists’ in Freedom of Expression: Essays in honour of Nicolas Bratza (2012) 111-
136.
14
 international scope of internet communications.

36. Perhaps article 10(2) supplies the answer. 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 the fear of exposure. As was said by the President of the

Family Division, while the internet poses enormous challenges:

“The law must develop and adapt, as it always has done down the years in
response to other revolutionary technologies. We must not simply throw
up our hands in despair and moan that the internet is uncontrollable. Nor
can we simply abandon basic legal principles.”36

37. Furthermore, the absence of a clear or consistent principle in Strasbourg

jurisprudence does not prohibit the development of a coherent body of domestic law.

In Kennedy v The Charity Commission37 it was argued before the Supreme Court that

article 10 imposed a positive duty on public authorities to disclose information of

genuine public interest. I joined the majority of the Supreme Court, in expressing

doubt as to whether the Strasbourg had gone so far. However, we held that the

common law principle of open justice supplied a means of accessing such information

without a need for article 10 to be engaged.

38. This decision and others38 demonstrate that the common law continues to

develop alongside the Convention rights, and offers protections which complement

those rights; as Lord Mance hinted in Kennedy, such developments may be “inspired”39

36
Re J (A child) [2013] EWHC 2694 (Fam), [43], per Sir James Munby P.
37
[2014] UKSC 20.
38
For example, R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532, A v Secretary of State
for the Department (No.2) 2 AC 221, R(Osborn) v Parole Board [2013] 3 WLR 1020.
39
Kennedy, [46],
15
 by Convention rights without relying on them. As was famously said by Lord

Bingham in R(on the application of Ullah) v Special Adjudicator:40

“It is of course open to member states to provide for rights more generous
than those guaranteed by the Convention, but such provision should not
be the product of interpretation of the Convention by national courts [...]
The duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time: no more, but certainly no less.”

Conclusion

39. In his impressive report, Sir Brian Leveson set out the case for press privileges as

follows:

“A free press is able to perform valuable functions which individual free

speech cannot. It is because of the position of the press as an institution of
power that it is able to stand up to and speak truth to power.”41

40. However, in an Internet age the institutions of the press do not have a monopoly

on speaking truth to power. The Kennedy decision drew attention to the role played by

“watchdogs” of which the press offer only one example, albeit the most prominent,

and arguably the most important example.42 The scope of this role has not been

defined,43 and it will be seen how it is developed in the future. What is clear is that the

rights enjoyed by users of the Internet must, in appropriate circumstances, be

protected robustly.

41. Last year the former Attorney General announced that he would be publishing

40
[2004] 2 AC 323, [20] emphasis added.
41
An inquiry into the culture, practices and ethics of the press: Volume 1, 6.1
42
See for example Társaság a Szabadsagjogokert v Hungary (2011) 53 EHRR 3 at [26].
43
As was noted by O’Bryne in her case-note on Kennedy. [2014] EHRLR, 284 et seq.
16
 guidance notes typically reserved for mainstream media outlets online. 44 Such

decisions acknowledge that Internet speech is a fantastic tool for expression but poses

new challenges.

42. As I hope to have suggested, the Internet offers a new frontier for public speech,

and the way in which the law protects both privacy and freedom of expression in this

context demands careful exploration. Analogies with traditional print journalism may

prove unhelpful, and hard line distinctions between private and public speech will

prove hard to maintain in a context where such a distinction is often blurred. This is a

context where the rights enshrined by article 8 are of a fundamental importance. 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.

43. Thank you.

44
http://www.independent.co.uk/news/uk/home-news/the-war-on-twitter-social-media-sites-threaten-justice-
system-warns-attorney-general-8981287.html
17