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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.