The behavior of The Times in the 2009 NightJack case, in which the paper outed an anonymous policeman blogging about his job, was always baffling since one of the key freedoms of the press is protecting sources. On occasion, journalists have gone to jail rather than give up a source's name, although it happens rarely enough that when it does, as in the Judith Miller case linked above, Hollywood makes movies about it. The principle at work here, writes NPR reporter David Folkenflik, who covered that case, is that, "You have to protect all of your sources if you want any of them to speak to you again."
Briefly, the background. In 2009, the first winner of the prestigious Orwell Prize for political blogging was a unidentified policeman. Blogging under the soubriquet of "NightJack", the blogger declined all interviews (I am not a media cop, he wrote ), sent a friend to deliver his acceptance speech, and had his prize money sent directly to charity. Shortly afterwards, he took The Times to court to prevent it from publishing his real-life identity. Controversially, Justice David Eady ruled for The Times on the basis that NightJack had no expectation of privacy - and freedom of expression was important. Ironic, since the upshot was to stifle NightJack's speech: his real-life alter ego, Richard Horton, was speedily reprimanded by his supervisor and the blog was deleted.
This is the case that has been reinvestigated this week by the Leveson inquiry into media phone hacking in the media. Justice Eady's decision seems to have rested on two prongs: first, that the Times had identified Horton from public sources, and second, that publication was in the public interest because Horton's blog posts disclosed confidential details about his police work. It seems clear from Times editor James Harding's testimony (PDF) that the first of these prongs was bent. The second seems to have been also: David Allen Green, who has followed this case closely, is arguing over at New Statesman (see the comments) that The Times's court testimony is the only source of the allegations that Horton's blog posts gave enough information that the real people in the cases he talked about could be identified. (In fact, I'd expect the cases are much more identifiable *after* his Times identification than before it.)
So Justice Eady's decision was not animated by research into the difficulty of real online anonymity. Instead, he was badly misled by incomplete, false evidence. Small wonder that Horton is suing.
One of the tools journalists use to get sources to disclose information they don't want tracked back to them is the concept of off-the-record background. When you are being briefed "on background", the rule is that you can't use what you're told unless you can find other sources to tell you the same thing on the record for publication. This is entirely logical because once you know what you're looking for you have a better chance of finding it. You now know where to start looking and what questions to ask.
But there should be every difference in an editor's mind between information willingly supplied under a promise not to publish and information obtained illegally. We can argue about whether NightJack's belief that he could remain anonymous was well-founded and whether he, like many people, did a poor job at securing his email account, but few would think he should have been outed as the result of a crime.
Once Foster knew Horton's name he couldn't un-know it - and, as noted, it's a lot easier to find evidence backing up things you already know. What should have happened is that Foster's managers should have barred him from pursuing or talking about the story. The paper should then either have dropped it or, if the editors really thought it sufficiently importance, assigned a different, uncontaminated reporter to start over with no prior knowledge and try to find the name from legal sources. Sounds too much like hard work? Yes. That this did not happen says a lot about the newsroom's culture: a focus on cheap, easy, quick, attention-getting stories acquired by whatever means. "I now see it was wrong" suggests that Harding and his editorial colleagues had lost all perspective.
Horton was, of course, not a source giving confidential information to one or more Times reporters. But it's so easy to imagine the Times - or any other newspaper - deciding to run a column written by "D.C. Plod" to give an intimate insight into how the police work. A newspaper running such a column would boast about it, especially if it won the Orwell Prize. And likely the only reason a rival paper would expose the columnist's real identity was if the columnist was a fraud.
Imagine Watergate if it had been investigated by this newsroom instead of that of the 1972 Washington Post. Instead of the President's malfeasance in seeking re-election, the story would be the identity of Deep Throat. Mark Felt would have gone to jail and Richard Milhous Nixon would have gone down in history as an honest man.