UK: Freedom of Information and Blogging: A Potentially Dangerous Mix?

Last Updated: 19 January 2005
Article by Richard Best

The Freedom of Information Act 2000 ("FOIA") gives people access to information held by public authorities which in many instances they could not previously access. Blogging gives people a publishing power they did not previously have. From commercial and legal perspectives, their combination may make for a potentially dangerous mix. Blogs which at least track Freedom of Information Act requests, such as the "UK FOIA Requests" blog (, are already springing up and, going by the US experience, it would come as little surprise to find bloggers posting copies of documents obtained under FOIA to their blogs. In the fervour surrounding both the Act's coming into force and blogging's power to the people, it may be easy to lose sight of the fact that existing copyright and other legal protections have not fallen away. This article notes some of the risks facing originators of sensitive information supplied to public authorities and bloggers who obtain and choose to publish it.

Freedom of Information: The door opens

FOIA came fully into force on 1 January 2005. Any person requesting information from a public authority now has a statutory right to be informed whether the information is held (the so-called duty to confirm or deny) and, if it is held, to have the information communicated to him or her, unless one of the Act’s many exemptions to disclosure applies. Last year the Department for Constitutional Affairs was estimating that 100,000 or so public authorities would be subject to the Act. Requests can be made by individuals, companies, non-UK citizens and even people living abroad. Information is defined broadly to mean information recorded in any form.

We can expect FOIA to be used by, among others, journalists, consumers, animal rights activists, companies and political parties. There is little limit on the types of information that will be requested. Exemptions may apply to prevent the disclosure of certain information, but in many instances that will not stop the requests being made because there are likely to be finely balanced questions as to whether, in the case of the qualified exemptions to disclosure, the public interest in retention is trumped by the public interest in disclosure. And even in the case of the absolute exemption for confidential information, it might be argued that there is such an overwhelming public interest in disclosure that the common law public interest defence to an action for breach of confidence would apply to defeat the application of that exemption. Moreover, some requestors may use FOIA for strategic or political reasons, even if they expect their requests to be refused. They may choose to publicise the fact that they have made requests, which in itself may put pressure on either the public authorities concerned or companies whose commercially sensitive information held by those authorities is the subject of requests.

One obvious consequence of FOIA is the potential release of confidential or otherwise commercially sensitive information. We know from overseas experience that freedom of information legislation is commonly used not only by companies trying to obtain information on their competitors but also by potential claimants to court proceedings. They may endeavour to get their hands on case-relevant documentation from public authorities, either for actions against the authorities themselves or for actions against corporate defendants who have been obliged to file sensitive information with those authorities. This prospect raises a number of practical issues which companies who stand to be affected by FOIA will want to consider. Those issues include taking steps to protect confidential documents and ensuring that, as a minimum, consultation takes place before any release.

Blogging: Publishing power to the people

Beyond these immediate practical issues, there is a potentially greater practical issue which is raised by the coincidentally timed explosion of blogging and webfeed technology. Without getting into the detail, a blog is simply a type of website which anyone with rudimentary computer skills and an internet connection can set up. Adding new content to a blog is, more or less, child's play.

Significantly so far as the distribution of content is concerned, most blogging applications also automatically create webfeeds. Webfeeds come in various flavours but the most common reference one sees is to RSS feeds. They are simply electronic files residing on a server which can be read from, among other things, a programme called a news aggregator or news reader. When a blog or other website with an automated webfeed is updated, so is the webfeed, which enables anyone subscribing to the feed to learn of the updates through their aggregator/reader, automatically, without checking the site itself. The significance of webfeeds is that they enable automatic, extremely fast and potentially global distribution and syndication of content posted to the internet.

The mix

One can immediately see how a blog could be used to publish, to the world at large, commercially sensitive information obtained under FOIA, with potentially significant economic or other consequences for the originator of the information. The important thing for both bloggers and originators to understand, however, is that the release of information under FOIA does not necessarily make that information fair game to be used in any way the recipient sees fit. This is something which print media, online media and many seasoned web administrators will appreciate but which grassroots bloggers may well not.

In many instances there will be little or no impediment to a recipient reproducing governmental information or commenting on (as opposed to directly copying) other information obtained under FOIA on his or her blog. But there are at least two things a would-be blogger cannot do or may not be able to do without the risk of legal action.

The first thing a blogger should not do is reproduce and post to a blog copies of documents obtained under FOIA which are subject to third party copyright. Posting a PDF copy of an obtained document to a blog may be the easiest way of sharing the information but if that document is subject to copyright then the acts of copying and posting without the originator's consent will in all likelihood constitute infringement. Although a public authority's copying of such documents for the purpose of complying with an information request does not constitute copyright infringement, the statutory provision which protects the public authority does not protect the recipient.

The second thing a blogger should not do, at least not before considering certain legal questions, is post FOIA-obtained documents or relevant portions of them which are defamatory of a person or company. Again, although a public authority's release of such documents under FOIA does not expose the authority to an action for defamation (unless the documents were released with malice), the authority's statutory protection does not apply to the recipient. Questions of separate defences to an action for defamation may arise, but that's a separate issue.

Minimising the risk

Originators of copyright material supplied to public authorities can take steps to minimise the risk of copying and posting to blogs (or other websites) by marking their documents with copyright notices, not because such notices are required to preserve copyright but because many people do not understand copyright laws and may innocently break them. Originators can also ask the relevant public authorities to inform recipients that the documents are subject to copyright. In cases where an originator knows the identity of requestors, those requestors could be directly notified that the documents sought are subject to copyright.

Similarly, if a person or company is aware that a public authority holds defamatory material which might be disclosed under FOIA, the public authority can be informed that that person or company considers the material to be defamatory, be asked to consult that person or company before releasing it, and even be asked to inform recipients that that person or company considers the material to be defamatory. And again, if the identity of particular recipients is known, they could be contacted directly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions