Does Elena Ferrante have the right to anonymity? – Nathan Capone

7 10 2016

elena-ferranteAn Italian investigative journalist has recently claimed to have ‘unmasked’ the pseudonymous Elena Ferrante, the bestselling Italian author of the ‘Neapolitan quartet’ of novels. Ferrante has consistently guarded her real identity and has been writing under the pseudonym since 1992. This raises interesting questions in connection with privacy rights and whether it could be considered a breach of Article 8 of the European Convention on Human Rights to reveal the name of an individual who otherwise wished to be anonymous.

The use of ‘pen names’ is of course nothing new. The reasons for employing a pen name can range from the rather prosaic, such as horror writer Stephen King who published four novels under the name Richard Bachman because his publisher did not believe that the public would buy more than one book a year from the same author, to those of military sensitivity, such as former Navy Seal Matt Bissonnette who wrote about his participation in the mission which killed Osama Bin Laden under the name Mark Owen. Mary Ann Evans, better known as George Eliot, wrote under a male pen name to ensure her works would be taken seriously (a more important consideration in the mid-nineteenth century than it would be today).

Ferrante’s reason for using a pen name is simply that she has no interest in publicity and wishes to remain anonymous, stating that books, once they are written, “have no need of their authors”. The journalist who believes he has uncovered Ferrante’s real identity, Claudio Gatti, has claimed that Ferrante’s readers have a right to know who she really is.

Assuming, for the sake of argument, that this scenario fell within jurisdiction of the English courts, Ferrante could potentially bring a claim for either breach of confidence or misuse of private information against the journalist for revealing her identity.

As regards, a claim in breach of confidence, there is a similar precedent arising out of a claim brought by Harry Potter author JK Rowling against a law firm who revealed that she was writing under a pseudonym. Rowling had been writing under the name Robert Galbraith in respect of her crime novel The Cuckoo’s Calling and had told a partner of a law firm she had instructed of this pseudonym in confidence. That individual then informed a friend who disclosed the information on Twitter. Rowling brought a claim for breach of confidence against the partner’s law firm which agreed to apologise and settle the claim by making a donation to a charity by way of damages.

This claim fitted squarely within the classic breach of confidence test (rather than misuse of private information) as there was a pre-existing relationship between Rowling and her solicitor who ultimately breached that confidence. In order to succeed in a breach of confidence action, the claimant must show that (i) the information has ‘the necessary quality of confidence about it’; (ii) the information was imparted in circumstances importing an obligation of confidence; and (iii) there was an unauthorised use of that information to the detriment of the party communicating it. Although there was no judgment in this case, the facts suggest that a court would have found in Rowling’s favour.

Ferrante’s scenario is different from Rowling’s as there is no pre-existing relationship with the journalist who has disclosed her identity. Therefore, this would not fit within the classic breach of confidence test. Instead, any action would likely need to be based in misuse of private information (which does not require a pre-existing relationship between the claimant and defendant).

For a claimant to succeed in an action for misuse of private information, the claimant must have had a reasonable expectation of privacy in order to engage Article 8 of the ECHR. In a nutshell, a claimant will have a reasonable expectation of privacy in the sense that a reasonable person in his position would feel that the information should not be published. Once the information has been identified as private, the court must then ask whether interference with the claimant’s right to privacy should be permitted. The basis for interference will usually be the defendant’s argument that the publication is justified under the right to freedom of expression in Article 10 of the ECHR.

There is an existing precedent from the English court in this respect: the case of Author of a Blog v Times Newspapers Limited. In this case, the identity of the author of an anonymous blog called ‘Night Jack’, which commented on the author’s work as a policeman, was going to be revealed in a future article in The Times. The author sought an interim injunction to prevent publication of his name on the basis that publication was a misuse of private information. Like Ferrante, the blogger’s name had been deduced by investigation by The Times‘ journalists, rather than through any ‘leaked’ information that had originally been communicated in confidence.

The claimant’s primary argument was simply that he wished to remain anonymous and had taken steps to preserve his anonymity accordingly. Mr Justice Eady refused to grant the injunction. Eady J followed the earlier decision of Mahmood v Galloway which had held that a journalist who writes under a pseudonym for the purpose of functioning more effectively in his undercover work has no reasonable expectation of privacy in respect of his identity, even in relation to photographs of him. Eady J therefore determined that the claimant failed at the first hurdle, that he had no reasonable expectation of privacy as blogging was essentially a ‘public activity’. Even if the claimant did have a reasonable expectation of privacy, in the specific circumstances, this would be outweighed by the countervailing public interest as it was quite legitimate for the public to be told who it was who was choosing to make quite serious criticisms of police activities and allegations of misconduct.

Where this would leave any claim for misuse of private information by Ferrante is unclear. She is neither a blogger nor a journalist, but a writer of fiction. The decision of Eady J in Author of a Blog did not go so far as to suggest that imparting information through a blog means that a reasonable expectation of privacy cannot ever arise in relation to the identity of the writer and he did not expand on whether anonymous authors who publish in different mediums (such as novels) might entail different considerations. Could it be equally said that the writing of novels is also a ‘public activity’ in the same way Eady J framed blogging? The judge also did not analyse whether a person’s ‘identity’ in of itself could constitute private information.

A number of questions can certainly be raised about Eady’s J’s analysis and it is not clear that the European Court of Human Rights would reach the same conclusion. In a speech in 2014, President of the Supreme Court Lord Neuberger suggested that if the correct analysis of the rationale behind press freedom is the public’s right to receive accurate information, not the press’ right to convey it, then all things being equal, it might be held that the anonymous author of a blog should enjoy protection rivalling the protection of anonymous press sources (in respect of which there is a substantial body of Strasbourg jurisprudence). Lord Neuberger also suggested that developing the law on duties and responsibilities of anonymous speech might be preferable to the chilling effect created by the fear of exposure.

If it were determined that Ferrante did have a reasonable expectation of privacy, this would then have to be balanced with the journalist’s right of freedom of expression under Article 10. When conducting the balancing exercise, the court will have regard to a number of factors, but neither article takes precedence over the other. In these circumstances, there are several considerations which could tip the balance in favour of Ferrante’s right to privacy:

  • Ferrante has deliberately and consistently not put her life in the public domain.
  • The consequences of publication would result in considerably more significant press intrusion.
  • She does not exercise any public function.

The defendant would likely argue that publication contributes to a debate of public interest, although it is questionable whether that is the case. The knowledge of the real identity of an author of a series of popular fiction novels (rather than political speech on a blog) could more easily be said to be interesting to the public rather than a matter of public interest.

The issue of anonymous authorship is something on which the English courts and the Strasbourg court are yet to deliver comprehensive rulings, but at a time where technology makes it increasingly difficult for an author to remain anonymous this issue will undoubtedly come before the courts again in the future.

This post originally appeared on the fieldfisher Scandalous! blog and is reproduced with permission and thanks



One response

8 10 2016

Reblogged this on World Peace Forum.

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