The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • MR DAVID ALLEN GREEN (affirmed).

  • Mr Green, I won't ask you your full name because you've just given it, but could I ask you to start with: are the contents of your witness statement true and correct to the best of your knowledge and belief?

  • You tell us that you are the person who writes the Jack of Kent blog. You're the legal correspondent for the New Statesman and the media correspondent for The Lawyer. You're also a practising lawyer and a journalist. You were called to the bar in 1999 and cross-qualified as a solicitor in 2001. You're a member of the National Union of Journalists and you hold an accredited press card.

  • You started your blog Jack of Kent in 2007. Your objective is to provide a liberal and critical perspective on legal and policy matters. You aim to be nonpartisan and not to descend to gossip. You say that almost all of your sources are stated and often quoted in full or linked to. Could I ask you, please, how many hits do you get on your blog on average?

  • I actually don't know. Last time I looked at the -- what are called the stats for my blog, I think it was between about 1,000 and 2,000 hits a day, and the New Statesman stats I think are higher than that as well.

  • Thank you. You tell us that when you blog, you comply with the general law of the land, and you believe that you blog ethically and responsibly. Perhaps I could ask you to develop what you mean by "ethically and responsibly". In your view, what does that entail?

  • Well, the starting position is that you just think through why you are publishing this, what is the purpose in why you are publishing whatever you are publishing? If it seems to serve a good purpose, then I think is there any reason for me not to publish this? For example, can I source it or not? If I can't source it, why am I making the claim? Is this something which is appropriate for me to write about? Am I doing this for the wrong motive altogether?

    And there are times where I just don't run something or write about something just because it doesn't -- first of all, it wouldn't seem interesting to write or it probably wouldn't be of any interest to the people who read my blog. I've developed a very good relationship with the people who comment on my blog and I would be wasting their time.

    So if it's not really that consequential or worth a blog, I may say something on Twitter. I try and make Jack of Kent a nonpartisan blog. I am a supporter of the Liberal Democrats but I don't write a party political blog at all. I use Twitter for more inconsequential statements, but for blogging I do put a lot of thought into why am I actually publishing this to the world?

  • That approach has plainly been successful because you tell us that in over four years of writing about sensitive and controversial subjects you have never had a significant complaint or a credible threat.

  • Completely accepting that you're an entirely responsible blogger, I would like to ask you about the potential for bloggers to act irresponsibly, and for your views on how the blogosphere is best regulated.

  • You can't look at blogging in isolation. Almost all the examples one can come up with are where you would say there has been irresponsible blogging or irresponsible use of social media. Often the information involved has come from somewhere else. So for example when there was a great deal of excitement because superinjunctions were being broken on Twitter, and indeed somebody set up a Twitter account which somehow, some way, managed to list seven or eight superinjunctions with relevant details, then yes, that was taken forward by various people on Twitter and it caused some excitement, but the question for me is how that information got put into social media in the first place.

    Similarly, on the Trafigura matter, the identity of the entity who was seeking to allegedly injunct Parliament or threatened to injunct Parliament over the Minton report, it was broken on Twitter, but all the information which allowed people on Twitter to break that information had been very carefully put into the public domain by non-blogging social media sources. All that happened is that people on Twitter were able to just put things together and work out what -- you know, who was actually threatening Parliament with an injunction.

    So almost all the examples I can personally think about in three years of using social media of alleged abuses by people using social media often can be traced back to somebody who may or may not have an agenda in placing that information into social media in the first place.

  • At the very least, social media has the effect of promulgating the information very widely and very quickly, doesn't it?

  • Yes. I think the best -- social media covers things far wider than politics and media. There are some fantastic blogs out there which don't write about political matters or media matters at all. But it is something which can take reportage further.

    Mainstream media are hard pressed. It's very difficult to create content day after day. Things are put out there. But what people in social media can do is step back in their own time and put together in one place all the material from disparate places for the benefit of the readers, so it's becoming more often that stories are being taken forward by citizens using social media, blogging, tweeting, Facebook or whatever, podcasts, videocasts on YouTube, because they have the time and it's a form of active citizenship.

    The notion that bloggers are out there as cowboys, which was put forward to this Inquiry by a witness here, is looking at it in a very wrong way, in my opinion. What you actually have are citizens who are now able to use various forms of social media to share information amongst themselves. It's very rare, in my experience, for a blogger or tweeter to themselves place into the public domain private information. What has usually happened is they've taken it from some other source and it's been tweeted or it's been blogged.

  • Accepting that there are many very beneficial uses of social media, which you've just touched upon, it's right, though, isn't it, that it can be misused, someone can use a blog or a tweet to intrude into people's privacy without warrant, to promulgate inaccuracies, to undermine injunctions, that can be done anonymously as well?

  • That is the case. Social media can be misused just like mainstream media can be misused and the law can be misused.

  • But the thoughts that I'm seeking are do you have any views as to whether, in order to guard against such misuse, it is feasible to regulate first of all blogging?

  • I think there's two ways I'd like to address that question. First of all is to make a very general point. At a number of times, people involved in social media have shown a lot more responsibility than people in mainstream media, so, for example, during the Lawrence case, it could have been perfectly possible for everybody to have linked to or reproduced the Rod Liddle piece in the Spectator, which one wonders how it managed into the Spectator but it was published and it shouldn't have been published.

    It didn't happen.

    As regards the superinjunctions, yes, I think the CTB, I think, injunction was widely mocked, not by me but it was widely mocked, but when somebody went further and put some very personal information into social media, it wasn't retweeted. People said no, this isn't good and it got very little traction.

    My starting point in addressing the question you've just posed is: there is a great deal of self-regulation and responsibility because what you are dealing with is not a type of person called blogger, you're actually dealing with citizens who are communicating with each other about issues that concern and interest them.

    As regards regulation, I would suggest there are two ways things are regulated. One is to take a very, shall we say, formal approach to regulation that in circumstance A you will face sanction B. And so you have some sort of code, you have some sort of legitimacy for that code, you have some sort of way of practically enforcing that code and you have some sort of way of providing a sanction against somebody who is in breach of that code for no good reason.

    It is incredibly difficult to see how that sort of model of regulation could work with people just using social media to communicate with each other, of which blogging is just one kind.

    But there's another sense of the word regulate, for example when you use the phrase "I'm about to regulate my own conduct". Ie there are things which make certain outcomes more likely, just because they are there. And but for them not being there, things would or wouldn't happen. And one way of helping social media is providing information. So the better blogs and the better tweeters link to information, so, for example, if I'm covering a legal case, which is live in the news, I can link to the statute, I can link to the caselaw, I can link to the CPR provisions, I can link to a whole range of materials which other entities have very kindly put on the Internet, and that just basically means that blogging and social media usage over time will be better, because they have access to better information. And that is one way of encouraging good blogging. It's just to basically provide good, first rate information for citizens to be able to share amongst themselves and public bodies are doing that.

    And the media are in my opinion becoming better at working with social media rather than against social media.

    There are other ways, for example, in my view the Trafigura story was broken. I think that whoever posted that story in the Guardian had a very good inkling that citizens looking at it carefully would be able to work out which Parliamentary Question it was, and it happened, and it happened in real time in about 20 minutes. I saw it happen, sitting at my screen, seeing political bloggers and tweeters actually saying "Wow, this is interesting. Where can we go with this? What public domain information is available?" And it was there.

    That is one way in which mainstream media works with social media.

    Another way is actually working with bloggers. Bloggers are not first-level reporters. The whole idea that you could replace reporting with blogging is misconceived. What actually is the case is reporters put the information into the public domain, but in the olden days, the only people who could actually sit back and analyse this and tell us what it means would be OpEd columnists or the occasional pamphleteer. Now anybody can do that.

    I think the best example of how blogging, social media and mainstream media work together is in science. Because there's been a dramatic improvement in science journalism overall, although we do get some quite silly tabloid stuff, because some of the best science journalists, like Adam Williford, Mark Henderson, Ian Semple(?), cooperate with bloggers, science bloggers, not only to source stories but to actually take stories forward. It's quite a wonderful thing to see how mainstream media are working with citizens now.

    I would actually say, looking at blogging and the blogosphere as something in itself and something which is capable of being regulated, and the question is should we or how you do it, is to look at how people are using social media in the wrong way.

  • Thank you. You go on to tell us at paragraph 7 of your witness statement that you pre-moderate comments on your blog.

  • Which has obviously worked well for you and promoted, as you tell us, the quality of the comments which are posted.

  • Plainly there are some sites that don't pre-moderate and there may be some that don't even post-moderate?

  • Would you regard it as good practice to pre-moderate?

  • No, it's a matter of choice. An outstanding blogger is Nelson Jones who writes Heresy Corner. He does very similar work to me, forensic analysis, putting things together --

  • Mr Green, could you slow down?

  • It's one of my repeated comments that people are speaking very quickly and because I'm trying to get it all recorded and transcribed, it can be lost.

  • I apologise. I'll slow down.

    There's a blogger who does very similar work to me called Nelson Jones who writes the Heresy Corner blog. He doesn't pre-moderate and his comments are of a broadly similar quality to mine.

    I pre-moderate because first of all I write about sensitive issues. I'm also -- I also happen to be legally trained, so I do think I'm able to make the decisions on what should and shouldn't be posted. But the fact that I pre-moderate is possibly one reason why I have such good quality comments on my site, but it's perfectly possible for a blogger to have good quality sites without pre-moderation.

    As regards those bloggers who have fairly vile comments on their sites and refuse to take them down, well, that's not what I would do, but they're just exercising what they can do with social media in the way they're choosing. I choose not to do that.

  • You tell us in paragraph 8 of your witness statement that in 2010, Jack of Kent was shortlisted in the blogging category for the George Orwell prize for political writing. You have been asked to co-judge the blogging prize in 2011 and examined over 200 political blogger entries. Also last year your New Statesman blog was shortlisted alongside the blogs of the BBC's business editor and the Economist's political editor in the mainstream media blog category of the Editorial Intelligence awards.

    You also tweet and have a Facebook page. Your Twitter account has 21,700 followers and your Facebook page, 1,190 users. Do you think that the ethical and regulatory questions which we've just been exploring which relate to blogging apply similarly to Twitter and to Facebook or is there a difference?

  • They are all different forms of social media. Twitter is an extraordinary platform. On the face of it, you would expect Twitter to be a very limiting form of communication because you only have 140 characters per message. Normally you can -- there are certain ways of extending them, but they're not possible. And you would think this would be a way of limiting communication.

    In fact it's worked out to be a very flexible way of communication because for example you can link to things, but the urls can be shortened, so they won't take up that much of the 140 characters. So it's a very good way of distributing links to people. So if I say this is an interesting case, I can link to it, send it to my followers and they can all click into it.

    You can use what are called hashtags. They are used in two ways. Sometimes they are used ironically, just to say this is an aside to the main point of my tweet. But what you can do with the so-called hashtags is that you can click onto them and so you then can create a list of all the tweets which are actually dealing with that topic.

    So, for example, with Leveson, there's a hashtag which people are using at the moment and they click onto that hashtag and then they will get the journalists who are covering it, they will get people who are following the comments. If I have mentioned a particular story, there's perhaps somebody now just saying this is what I'm talking about and linked to it, and it's a very efficient way of getting information on a particular topic very, very quickly.

    It's not a surprise, I think, that almost every journalist now has a Twitter account. Because not only is it a way of promoting your writing by saying this is what I've written or this is what I like, but it's a very good way of getting information very quickly on emerging topics, and so you have some first rate what are called anchor journalists like Neal Mann, who can break stories far quicker because they are watching the Twitter accounts of various things in separate lists, can see something and then very quickly verify it or not and break a story, and it is quite an interesting way of gaining information.

    But to think of it as Twitter or Facebook or blogging, again I would suggest an alternative way is just to think of it as different electronic technical platforms of social media which people are using. So yes, the same issues and concerns do cover all of them.

  • You then go in your witness statement to tell us a little bit about blogging, and in particular to give us some pointers towards a definition but not an actual definition. It's a form of self-publication, can be immediate, well suited to responding to developing news events, as you've just told us. You then go on to tell us about live blogging and you draw a parallel with pamphleteering and refer, as you have done orally a moment ago, to the power of linking.

    At the top of paragraph 21 of your witness statement, you give an example of the ongoing collaborative relationship that the blogger can have with his readers to take matters further and develop ideas, and you introduce your work about Mr Hari's blog as David Rose. Your statement exhibits a lot of material to show how that process occurred and it's right, isn't it, that through your website you drew attention to matters in the public domain which, when put together, although you didn't name Mr Hari, enabled others to put the jigsaw together?

  • Yes. I feel more comfortable talking in concrete terms about blogging rather than abstract terms so if I could come to the two examples I've exhibited because they're very similar. One is for work I did on so-called David Rose. The other one is something which of course will be very familiar to the Inquiry, which is the Night Jack blogging I've done, which serves two purposes because it's something you all know about, so you can see how it works, and second of all it's just been a very interesting exercise in what blogging is capable of in just a few days.

    In the Hari case there was an article in the Spectator, a diary column, as there is from time to time, so it was placed into the public domain as an issue by the mainstream media. It was by my friend the journalist Nick Cohen. He and a number of other journalists over a period of time had noticed that their Wikipedia entries were being distorted, hostile things were being put in and other things were being put in which tended over time to promote the career of another journalist, Johann Hari.

    It just seemed interesting and some the negative things which were put into those Wikipedia entries were actually quite nasty and I thought poor Nick, this is not very nice to actually have this sort of campaign against dependence you on the Internet.

    That's where it would have stayed because there's no reason it would have moved further, just in the mainstream media.

    I thought this is interesting and I thought is there a public interest in following this, is this worth writing about? And I thought yes, somebody apparently is using an account over time in a systemic way, there were over 900 edits of one kind or another over a number of years where the careers of various journalists were being attacked whilst the career of a particular journalist was promoted at their expense.

    The person who used the account, they called themselves David Rose, had placed lots of information about themselves into the public domain on Wikipedia sites. A whole persona was created with a fantastic array of attributes. This was somebody who had spent two years in the Antarctic but also regularly subbed for the Independent. Every time somebody said "Actually, who are you, what about this?" he said "Oh, I can explain that away". It just seemed to be an extraordinary thing.

    I just wrote "Who is David Rose?" I just put a number of all these things in one place. Who is he? It just seemed an interesting question.

    And so over the course of 140 comments on my post various suggestion and theories were tried, nobody put any private information in there. There were no malicious comments published. Obviously he was a controversial journalist, there were certainly things I didn't publish on my blog because I didn't think it was appropriate and I just wanted to get to the bottom of who this person was.

    It wasn't an attempt to witch-hunt, in fact I never called for the journalist to be sacked. I was the one who suggested to his editor that the journalist be sent for journalism training because I don't want to use my blogging for people to lose their jobs. It just doesn't seem appropriate. But it did seem an interesting question.

    We got to the point where it was fairly obvious who was behind this David Rose account and it was fairly obvious it was Johann Hari.

    No non-public information had been used in that exercise. All that had happened was bloggers and commenters had put together information which the David Rose person had put into the public domain themselves. It's just that we had put it together and analysed it.

    And then there were other allegations about the journalist, about plagiarism and fabrication, which came to a head, and so there was a suspension and eventually the journalist disclosed himself to his employer, that that is what he had been doing with his Wikipedia.

    So he wasn't outed by Jack of Kent. All we did was put together information which pointed in one direction because I thought it was important for the admission to come from the journalist themselves for what they had been doing.

    What has happened since is that a lot of other things may have come to light. Lots of journalists are now telling me things which I should be publishing about the journalist and I think that's inappropriate because the person has apologised, although many people, including myself, don't think the apology is very satisfactory, but there is a point where you go from actually trying to look at something to something being a witch-hunt, and I don't want to go that far.

  • The other example is Night Jack which I can come to later.

  • Is there a risk that journalists are giving you information for you to put out in your blog that they wouldn't put out in their newspapers?

  • It's happened occasionally that I have been approached on that basis. But on the other hand I don't think I have ever published something which I wouldn't be happy publishing had I got the information myself.

    I do think some journalists do have a relationship with bloggers like that. The nearest I've ever come to that situation was when a journalist from the Guardian had a copy of the Wikileaks nondisclosure agreement and I thought this was an interesting issue that Wikileaks, which supposedly was in favour of transparency, had imposed a confidentiality agreement on its staff where I think it was something like a £12 million penalty clause, which was an extraordinary thing. And so I published that in the New Statesman, and once that was out in the public domain, then the journalist who had passed it to me actually said this was my document which I had been given.

    I think that's the only example which comes readily to mind of me co-operating with a journalist in the mainstream media, but I don't think I've ever been used by a journalist to put something in the public domain which they wouldn't feel happy publishing themselves.

  • Your statement goes on to deal with Twitter, much of which you have already addressed but there's one issue I would like you to expand upon. You talk about a process of significant but informal peer approval and self-regulation on Twitter.

  • From your experience, how does that work?

  • Well, two or three ways. People will very readily comment on what you say on Twitter and the more followers you have, the more people who watch your Twitter account, the more comments like that you have, and it is actually quite brutal sometimes and upsetting. On the other hand, it does make sure if you are doing something which isn't quite right, you're called out on it straight away and people say this is wrong or you've got something wrong.

    The other way peer review works is that over time certain tweeters will gain more followers or gain more credibility, some lose credibility. It's not like message boards where everybody has space to go as long as they want. You can choose who you follow. So there are journalists who -- and bloggers and tweeters who have built up very high follower accounts just because they over time are seen as a reliable source of legal information or science information.

    I would say it's analogous to what I view the 19th century city of London must have been like, that everybody just knew each other's reputation. You can quickly see their follower account, who they follow, whether they have credentials, whatever. You can instantly form a view, not always the correct view, but you can instantly form a view as the credibility of a tweeter.

    Somebody wants to go onto Twitter just to be malicious and send lots of abusive tweets, you will -- they will find it very difficult to build up a substantial follow account over time.

    These are two ways where there is what I would call self-regulation. There's transparency, you can see how influential somebody is or not, you can see them by their follow account or how often they retweet. There is accountability. If you do something wrong, you will very, very quickly know about it. And so in a way it is a good example of self-regulation, because it polices itself and gives itself the information to allow it to police itself.

  • Your witness statement continues by exploring the relationship between social media and the mainstream media?

  • You do this in two parts. First of all, looking at negative aspects, and you give us examples where you tell us that the mainstream media has abused material available in social media. The first example you give us is the way in which the Scottish edition of the Sunday Express on 8 March 2009 used material from Facebook to write an article about Dunblane survivors for which they later had to apologise.

    Then you also tell us that there have been instances where photographs posted on Facebook, essentially for private purposes, have then been used by the mainstream media without obtaining permission first?

  • Yes. I'll just deal with the Sunday Express thing first. It was an absolutely horrific episode in journalism. Some journalist on the Scottish edition of the Sunday Express got access to the Facebook accounts of the individuals who had been unfortunately caught up in the Dunblane massacre. They were teenagers. They were acting like teenagers, they were talking to each other about what they did as teenagers. This is what social media is for. They're in different places, they're able to communicate with each other.

    The Sunday Express took it upon itself to make this a major story. It took examples of exchanges and photographs and tried to make out that the survivors of Dunblane were being disrespectful in acting like this, that it was scandalous.

    It was an utterly horrible piece of journalism, and it's something which I would invite the Inquiry to have a look at as an episode because I think it's the worst single example of newspaper abuse of social media.

    There was outrage, and the outrage was converted into a campaign, an online campaign, which within a week forced the Sunday Express, Scottish edition, to apologise.

  • So the date of the apology is 2009, not --

  • 2009, I apologise, that's a typographic error.

  • The point is the apology was forced through social media before the PCC could comment?

  • Yes. These outrages come and go and sometimes they are disproportionate and you do think why are so many people outraged? All that is happening, it isn't that the social media platform is causing the outrage, it's just people acting as citizens are outraged at something they have seen, and it worked very quickly with the Dunblane matter. I apologise for the typographic error.

  • Do you think that there's a need for any further regulation of the mainstream media in its use of social media or do you think that the existing definitions in the PCC code are sufficient to cover the abuses that you've come across?

  • The best way of approaching that question is to draw to the Inquiry's attention the use tabloids are now routinely making of photographs taken from Facebook and Flickr. Because it is casual, it is routine, they take a view on the risk. They have no right to use that photograph for that purpose, it seems to me. They know that they're probably infringing copyright in doing so, but they've taken a view on the risk that they won't face any legal action.

    They certainly wouldn't use photographs taken from a picture agency in that way. It's a form of free content.

    The reason why I highlight those points to the Inquiry is I think that is to an extent broadly analogous with what the culture of phone hacking or email hacking was five or six years ago. I do not think many journalists actively decided to break the law, they had the means to do so and views were taken on whether laws would be enforced or not.

    So to hear that tabloids realise that they shouldn't have been doing telephone and email hacking when they are routinely misusing on a day-to-day basis photographs taken to which I don't think they are entitled I think is a way of seeing how regulation works even now, because they shouldn't be infringing copyright in that way but they routinely do.

    And the people whose photographs are taken from their Facebook account and published to the world with sensational copy and published on the Internet, it's traumatic and humiliating to the individuals involved.

    I understand the Inquiry are going to have somebody from Trans Media Watch on this, and I helped them with their submission, where the only public interest in the story is that somebody has a gender reassignment. There's no public interest in this. This is a very personal operation for people or whatever, or a psychological experience where they're having counselling. It's a very difficult time for people to go through, and then a tabloid will get photographs of them and do a before and after, just to humiliate them, just because it's something to do. It's wrong. There's no public interest in doing it, and these sort of things are still carrying on.

  • When you say it's rife --

  • Or routine, can you point me to evidence of that?

  • I have asked for examples on Twitter and I was given quite a few examples, and you will see in my witness statement I'm intending to do a supplementary witness statement detailing these.

  • Yes, I noticed that you were planning to do a further statement.

  • It's just that I was given so much information on examples of how social media helps improve media and abuses, it seemed to me best to do a short initial witness statement for the purposes of today, and then to follow that up with detailed examples in a further witness statement.

  • I'd be very grateful, and it may be sufficient merely to publish that further statement rather than ask you to come and speak to it, but I would be grateful.

  • I should be grateful if it could just be published.

  • The third category of abuses that you tell us about is the exposure of anonymous bloggers. At paragraph 33 of your witness statement you name two, Night Jack and Girl With a One Track Mind. At paragraph 34, you also mention Belle Du Jour. In your exhibits, you've also shown us the comments you've had about the Night Jack story?

  • And your work to try and establish how the exposure of Night Jack's identity came about.

  • I've shown you before you started giving evidence a letter that the Inquiry has received from the Times, from the editor Mr Harding, dated 19 January this year, that's last Thursday, after he gave evidence, which contains some further information about what the Times says about this matter. I'll read it out. It says:

    "In June 2009, we published a story in what we strongly believed was of public interest. When the reporter informed his managers that in the course of his investigation he had, on his own initiative, sought unauthorised access to an email account, he was told that if he wanted to pursue the story, he had to use legitimate means to do so. He did, identifying the person at the heart of the story, using his own sources and information publicly available on the Internet.

    "On that basis, we made the case in the High Court that the newspaper should be allowed to publish in the public interest. After the judge ruled that will could publish in the public interest, we did.

    "We also addressed the concern that had emerged about the reporter's conduct, namely that he had used a highly intrusive method to seek information without prior approval. He was formally disciplined. The incident has also informed our thinking in putting in place an effective audit trail to ensure that in the future we have an adequate system to keep account of how we make sensitive decisions in the news-gathering process.

    "This was an isolated incident and I have no knowledge of any else like it. If the Inquiry has any further questions about it I would, of course, be happy to answer them."

    The whole of this letter will in due course be published on the Inquiry's website.

  • Last Thursday.

    My question to you is: from your knowledge, from your blogging activities, are you able to say one way or another anything about the veracity of that account?

  • I have no separate information to verify or otherwise the statement, but I would like to make a couple of comments on that letter.

    First of all, it's odd that that information wasn't given at the time of witness statements given the question which was posed to the Times editor.

    The second point is that the chronology of who did what and when is actually quite difficult to follow initially. A decision was made to publish information based on an investigation where email hacking had occurred as part of it. Well, it may well be that there's a public interest in that. I can think of circumstances where there could be a public interest in using that sort of means, but it wouldn't be my decision, it's the editor's decision.

    The blogger, Jack Night was his blogging name, was notified. He got the phone call. He contacted lawyers. The Times was contacted. They agreed not to publish immediately and then there was a privacy hearing, an injunction hearing before Mr Justice Eady.

    At that hearing, the Times told Mr Justice Eady --

  • I'm not sure that you need to rehearse the history for us, because now you're just doing that. I'm more interested in how --

  • The point I was hoping to reach was that that information in that letter should have been given to the court before Mr Justice Eady.

  • That's an issue which I will have to think about, of course. But your blog, which discusses this at some length and comes back to it, speaks of a concern -- and was this your concern or somebody else's -- that the research had been done backwards. I think you used the analogy of a maze, working from the inside out rather than the outside in.

  • Yes. When I first came across this story in 2009 I wrote about it and I thought it was a spectacular piece of detective work to have worked out Night Jack's identity from the information on his blog. It just seemed an astonishingly good piece of journalism to have actually achieved that.

    It always struck me that it was a very, very neat explanation for how it was done, which was perfect, and I've seen the witness statement of the journalist and it reads like a detective novel. It's a great piece of journalism. But I just thought I'm not quite convinced. There must have been some sort of other ways in which information was verified.

    But I didn't give it a second thought really for two years because it had come and gone and the Times had assured the court that it was done entirely on publicly available information.

    And then as I've set out there was a witness statement from the interim head of legal just mentioning it. It was the first of the witness statements to be published. I didn't know if there were going to be other witness statements published at all, whether it was going to be mentioned. But I noticed it because it was reported by the Press Gazette and that's the only reason I noticed it and they didn't make anything big of it and it wasn't featured in any of the other papers to any great extent. Not that I saw anyway.

  • If I could just stop you there, does it come to this, that there may still be an unanswered question about whether anything that was gained from the email hacking in fact was used to assist the identification?

  • I've not made that allegation, but it just seems an artificial exercise to separate out --

  • I'm not suggesting you made the allegation, but I am asking: is that still the unanswered question?

  • It seems to me that if you have used an email hack as part of an investigation, you can't artificially pretend you never did that. You will use that information as part of solving the puzzle which you have set yourself.

    What seems to me to have gone wrong is that at the time it wasn't very clear to the managers the role -- the hacking had taken place and the Times has said itself in fact they are unclear as to the actual role although they are assured that the identification had been above board.

    My concern is this should have been before the court at the injunction application.

  • Thank you. You go on in your witness statement to tell us about the positive aspects of social media.

  • We have the statement, which is taken as read, so I needn't ask you to develop it at any length.

  • Just before you pass on, I mean your real point, which is I think the value of going down this line as a general illustration, is that the power of those who comment on blogs and who write blogs is potentially very great because of the use that had been made of legitimately available information but by many people.

  • That's the real point behind all this, isn't it?

  • Yes. That's the point I want to make.

  • I would say that social media and active citizenship using social media platforms is part of the solution to how we can have a better mainstream media in this country. It isn't as if that is part of the problem to be solved, I think it's actually part of how we can go about getting better news, better analysis.

    There are a number of bloggers out there who do exactly the same as what I have done on other subjects. I just happen to have covered Night Jack and other media law stories.

  • Yes. You make the point in relation to your own blogging about how you use your blog to expose decisions, explain them, challenge them and comment as you feel appropriate.

  • Well, typically I see something in the news, it's what I call a bad law story, where either there has been some very bad journalism or there has been an abuse of power. But the usual thing is that the law is an ass. You see these stories all the time, they are a staple. And sometimes the law is an ass and needs to be exposed as such but sometimes it's just that this is a formulaic way of writing.

    I contact those involved, I ask for press statements. I try and work out what happened procedurally and how the case ended up in the court or whatever, and then what I will do is set out what the Crown Prosecution Service said, what the defence lawyer said, point out what the applicable law is, in a way which I hope is accessible to lay people, and so rather than telling people what they should think about a case, although I do have my opinions, what I'm providing are the tools by which citizens who come across my blog can form their own views on those cases.

  • You might even actually explain sometimes why judges do what they do in a way that is more accessible than judges do.

  • I explain cases as carefully as I can to lay people in a different medium. I would never in any circumstance criticise a judge in my blog.

  • You didn't have to say that, Mr Green.

  • I will criticise their decisions.

  • But I was able to write about the Simon Singh libel case over two years, which was an incredibly illiberal case to have been brought against Simon Singh and I don't think I mentioned Sir David Eady once or criticised him once.

  • All right, I understand the point.

  • Thank you. Two more short points. You are making the point in your witness statement that people shouldn't come to sweeping stereotypes about who bloggers are, and point out that there are a lot of very eminent people doing a lot of very positive blogging work in many fields.

  • The other point, a technical one, paragraph 53 of your witness statement, where you tell us in fact you have no idea where the servers of the website which hosts your blog are located.

  • No. I could find out if I so wished, but it's not an important issue for me. I'm just using a platform which is available to any citizen, you just type into a box and it's then published, and anybody can do that.

  • You're using one of two --

  • -- principal routes of blogging?

  • Yes, there's Wordpress and there's Blogger, and people who either are not part of a mainstream site or haven't built their own website will tend to just open a blog account and it's as easy to open as an email account and then you can just publish to the world.

  • The question which arises from that: if someone does post something which is objectionable, if the servers are outside the jurisdiction, and I use the word if advisedly, it makes it very difficult, doesn't it, if the blogger refuses to take down the post?

  • Yes. But I personally think blogging in terms of formal regulation is best left to the law of the land. If you have a copyright or privacy or libel claim, it's just a different form of publication and can be subjected to the general law of the land. That's why I used that phrase.

  • Provided, of course, that the person who is affected knows the identity of the person who is writing the blog. If you blog in an adopted name, and do not disclose who you are, then --

  • That is a problem, but it's also quite difficult to see what a solution to that problem would be now that anybody can just publish on the Internet.

  • I understand. But that's quite an important position because it's fine for you to say I'm subject to the law of the land and if I defame somebody, they can sue me, but that's because they know your name.

  • Yes. However, unless a blogger has built up a following or has become popular, you can publish stuff and it won't get noticed necessarily unless it's picked up by somebody else. It's easy to publish, but it's not that easy to popularise something. That does take somebody else to take an interest. You can't set up an anonymous website and publish to the world and expect the world to notice.

  • Thank you. Those are all my questions.

  • I have one other set of questions, please, Mr Green.

    Without being too inquisitive, how does a blog -- I'm not necessarily saying your blog -- make money or does it not make money?

  • I think I've probably earned, which I've never claimed, about £12 in all my time at Jack of Kent through Google AdWords. Most of the adverts are for chiropractor practices which I find quite amusing because that's the main case I wrote about for two years. You don't do it to earn money. You do it because you want to participate to a public debate.

    On the New Statesman I'm paid as a freelancer, but some bloggers are able to gain income from traffic. But most people who use blogging don't do it for financial reasons, but because they want to be part of a civic society. Somebody has to pay to host it, and that's why Blogger and Wordpress exist, and they provide a platform, which they pay for for me to use for free, and their commercial model may well be they just want to get somebody onto their platform so they can promote their platform as having such-and-such content.

    The starting point is not how do you earn money out of blogging but how can you participate in the debate.

  • Should there be a difference between those who commercialise their use of social media by encouraging advertisements or whatever, and those who are doing no more than just speaking loudly actually to the world at large rather than to their next door neighbour?

  • Yes, but a blog will not gain any traction just because of its advertising. So you may try and use that as a means of regulating some blogs and not others, but I'm struggling for the moment to think of a way that could be converted into meaningful regulatory action.

  • I wasn't necessarily doing that. I was just trying to understand how and why it works.

  • Yes. I personally don't like the word "blogging" and I do try and avoid it as much as possible, but whenever I try to use a synonym I'm mocked so I have to stick to I am a blogger.

    But it isn't a category of activity which is very tight. It's just writing for the Internet on things which interest you. It used to mean that you had a weblog and you used it in a formal way, but I think the meaning is becoming so elastic and that's why in my statement I'm careful not to offer a definition but just some pointers as to how this is different from other forms of media.

  • All right. Thank you very much indeed.