The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life.
This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.
In Foster v McPeake & Ors [2015] NIMaster 14 Master Bell states
[1] I have before me a number of applications to strike out or stay the plaintiff's action.
[2] On behalf of the first defendant there is an application, firstly, to strike out the plaintiff's action for failure to serve a statement of claim and, secondly, to strike out the plaintiff's action for (a) a failure to disclose a reasonable cause of action; or (b) on the basis that it is scandalous, frivolous or vexatious; or (c) that it is otherwise an abuse of process.
[3] On behalf of the second, third and fourth defendants there is an application, firstly, that I strike out the writ on the basis that the plaintiff's action (a) discloses no reasonable cause of action or (b) is scandalous, frivolous and vexatious or (c) is otherwise an abuse of process of the court; or, secondly, that I stay the action on the grounds that the action is an abuse of process and/or is bound to fail.
[4] The plaintiff represented himself, assisted by his brother in the role of a McKenzie Friend. The first defendant was represented by Mr Elliott. The second, third and fourth defendants were represented by Mr Cush. I had the benefit of oral submissions from the plaintiff, Mr Elliott and Mr Cush and of a skeleton argument from Mr Elliott. ... In respect this saga the plaintiff sues various of the second, third and fourth defendants for : (i) Exceeding jurisdiction, misconduct in public office, and defamation of the plaintiff's name without providing and proof of jurisdiction or a cause of action; (ii) Non-payment of bills, forcing the plaintiff to perform without his consent; (iii) Malicious prosecution; and (iv) Fraud.
Application by the 1st Defendant
[7] The plaintiff has served a document which he has entitled ""Affidavit and Statement of Claim of greg of the family foster". It is clearly an attempt, albeit inadequate, to comply with the Rules and serve a Statement of Claim. I shall not treat it as an affidavit (because under Order 18 Rule 19 I am not entitled to consider any affidavit on an application to strike out for no reasonable cause of action.) Rather I shall treat it as a Statement of Claim and attempt to interpret it in a way which is favourable to the plaintiff if I am in doubt as to its meaning. In an attempt to be fair to the plaintiff I also include as being part of the Statement of Claim an additional document set in his "case file", namely a two page document (paginated as pages 21 and 22) which sets out the seven torts he alleges have been committed by the defendants.
[8] In the changed legal landscape of recent years that sees a much greater number of personal litigants coming before the courts, particulars of claim may be such as were described by Butterfield J in Mehta v. Mayer Brown Rowe and Maw (a firm) and another [2002] EWHC 1689 (QB), namely "diffuse, opaque and on occasion wholly incoherent, and in large measure very difficult to penetrate". However, as he stated, that fact on its own does not drive the claimant from the judgment seat. The general approach therefore adopted by courts is that personal litigants should be given the benefit of any lack of clarity in a pleaded case and, as Tugendhat J said in Merelie v. Newcastle Primary Care Trust [2006] EWHC 150 (QB) pleadings should be interpreted with appropriate latitude. Lay litigants should not be held to the same standard of accuracy, skill and precision in the presentation of their case as that required of lawyers. As Judge Serota said in an Employment Appeals Tribunal context, where pleadings are prepared by self-represented parties, courts should not therefore be too legalistic in their approach, providing that the opposing party knows the case it has to meet and has a proper opportunity to do so. (Pousson v. British Telecommunications plc [2005] All E.R. (D) 34 (Aug)).
[9] It follows therefore that, although the plaintiff's Statement of Claim is unlike the vast majority of Statements of Claim filed in High Court litigation, I do not grant the first defendant's application to strike out the action for failure to serve a Statement of Claim. ...
[17] I consider that the plaintiff's argument is entirely misconceived. Civil servants and public officials can only rarely be held individually accountable for actions which are performed on behalf of government departments and public agencies. The principal mechanism for doing so is the tort of misconduct in public office. The plaintiff has not alleged that tort against Mr McPeake (although he has alleged it against the other defendants). The plaintiff was quite frank in his submissions. He stated that he and his co-owners of the property were not aware of what their rights were in 2010 when a vesting order was proposed. They did not seek to bring judicial review proceedings in respect of the redevelopment plans, nor did they use any other appropriate mechanism to challenge the proposed order.
[18] Although a lack of style and clarity which may exist in a personal litigant's pleadings can be treated with a degree of latitude, the lack of a reasonable cause of action cannot. On my analysis of the plaintiff's Statement of Claim, it contains no allegation of facts which, when one assumes them to be true, would give rise to a reasonable cause of action against Mr McPeake. On this basis alone I consider that it is appropriate to grant the application and strike out the action on the basis that there is no reasonable cause of action against Mr McPeake.
[19] Mr Elliott also argues that that the action against Mr McPeake should also be struck out because it is scandalous, frivolous or vexatious and that it is otherwise an abuse of process. In Attorney General of Duchy of Lancaster v L&NW Railways [1892] 3 Ch 274 at 277 Lindley L.J. held that the words frivolous or vexatious are meant cases which are "obviously unsustainable". The pleading must be "so clearly frivolous that to put it forward would be an abuse of the process of the court" (per Jeune P in Young v Holloway (1895) P 87 at 90). The case brought by the plaintiff against Mr McPeake clearly falls into this category. The plaintiff is not aggrieved by anything done personally by Mr McPeake. He is aggrieved by the vesting order made by the acquiring authority in respect of 99 Soudan Street and this litigation is simply an attempt to litigate matters in connection with that compulsory purchase. In that regard, I also consider that bringing these proceedings against Mr McPeake is frivolous or vexatious and it is otherwise an abuse of process and that a decision to strike out the proceedings against him on this basis is also justified.
[20] It is necessary to observe that the application before me possesses a number of features which I referred to in my judgment in The Man Known as Anthony : Parker v The Man Known as Ian McKenna And The Enforcement of Judgments Office [2015] NIMaster1. In that judgment I referred to a decision by Chief Justice Rooke judgment in the Canadian case of Meads v Meads [2012] ABQB 571. In his extensive and detailed written judgment the Chief Justice explains that that court has developed a new awareness and understanding of a particular category of vexatious litigant. They describe themselves in a variety of ways, sometimes, for example, as "Freemen" or "Freemen-on-the-Land". The Chief Justice, in the absence of what he considers to be a better description, terms them "Organized Pseudolegal Commercial Argument litigants" or "OPCA litigants". He explains that these persons employ a collection of techniques and arguments promoted and sold by others to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals. He notes that in Canada over a decade of reported cases have proven that the individual concepts advanced by such litigants are invalid. In his judgment he then goes on to categorise these schemes and concepts, identify defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies.
[21] The application in the case before me has a number of these features. Firstly, the plaintiff uses an odd mode of identification. His Statement of Claim states "I, greg of the family foster (as commonly called), being the undersigned, do solemnly swear, declare and depose that I am not the all capitalised name 'GREG FOSTER' defined to take advantage of by diminishing my status to Roman civil officer subject to Roman civil codes." I put it to him that he presumably did not introduce himself socially as "Greg Foster, a man and one of the people" and that the reason he asked me to refer to him as "Greg" in court was that he believed he obtained some sort of legal benefit thereby. He agreed.
[22] Secondly, the plaintiff stated that he was not bound by statute law passed by Parliament unless either he consented to it or an act contrary to a statute caused hurt or injury to another person. His affidavit states, inter alia, "the law of statutes is the law of contract"; "a statute is a legislative rule of society given the force of law by the consent of the governed. (I am not legally qualified to interpret statute and do not give my consent either tacitly or otherwise)"; "enforcing statute on a man without his consent, when he has caused no harm or broken no contract is slavery"; and "presuming millions of statute liabilities are attached to a man from birth, without his knowledge or consent is morally wrong and classed as slavery."
[23] Thirdly, although he did not go as far in his submissions as to say that he believed that the court had no jurisdiction over him, his statement that he was sovereign amounts to a similar position. His Statement of Claim states : "as one of the people I do not yield my sovereignty to the agencies of government that serve the people."
[24] In Master McCorry's decision in the case of The Man known as Anthony Parker v The Man known as Master Ellison and the Man known as Donnell Justin Patrick Deeny (Unreported, 16 April 2014) Master McCorry concluded that the plaintiff's arguments largely consisted of :
"a kaleidoscope of pseudo legalistic jargon, alien to law, practice and the administration of justice in any modern common law jurisdiction and in short is largely nonsense."
That assessment is apposite to the arguments made by the plaintiff in this case. The Freeman approach has been considered in legal literature in recent years and been described as a "delusional approach to legal issues" ("Land of the Free, Home of the Deluded", Rooney, K., Irish Law Society Gazette, April 2012, p 12.) which arises from a "murky pseudo-legal world" ("Freeman on the Land and Other Organised Lay Litigant Groups – Part 2", Keys, T., [2014] Commercial Law Practitioner). It has proved difficult to discover any case in which any court in any jurisdiction has found the arguments to be meritorious.
[25] To borrow the conclusion of Chief Justice Rooke in the Canadian case of Meads v Meads, the arguments the plaintiff has advanced have no effect or meaning in Northern Ireland law. However I have been careful to examine the Statement of Claim and the plaintiff's submissions to ensure that beneath the sometimes meaningless "Freemen on the Land" language there does not lie an argument which has some merit. Nevertheless I have been unable to detect any meritorious legal argument which requires to be answered by Mr McPeake.
