In his judgment in Davidoff v Google LLC ([2023] EWHC 1958 (KB)) Nicklin J has comprehensively restated the principles to be applied on Norwich Pharmacal applications, emphasising the importance of balancing the Convention rights of the applicant and those of the alleged wrongdoer.

In particular, he made it clear that such orders will not be granted speculatively to strip away online anonymity.  Practitioners were reminded of the need to provide proper evidence of the alleged underlying “wrong” and to give full and frank disclosure.  The Judge applied a strict analysis of the “facilitation” precondition for making an order, which he held was not satisfied.  The application was, therefore, dismissed.

Background

The claimants applied for a Norwich Pharmacal order against Google in relation to a potential claim for libel and malicious falsehood.  The first four claimants  were members of a family who had operated a property management/estate agency business, the fifth and sixth claimants.  The claimants complained about “fake reviews” posted on the Trustpilot review website. The corporate claimants received an overall two-star rating of “poor” on the Trustpilot page. The claimants had been granted a Norwich Pharmacal order against Trustpilot which enabled them to identify the email addresses associated with the accounts that had posted the reviews. Each email account was registered with the defendant’s Gmail platform. Those email addresses were used by the people who had posted the reviews to register with Trustpilot.   The claimants then made a further Norwich Pharmacal application in an attempt to identify the individuals who controlled or operated those email addresses.

Nicklin J directed that he should hear this application because of the importance of some of the issues which arose: in particular, because of the need for proper consideration of the balancing of Convention rights when making Norwich Pharmacal orders [12].  He heard the application on 25 May 2023 and reserved judgment, which he gave on 28 July 2023.

Judgment

After dealing with the background and the evidence, the Judge dealt with the applicable legal principles relating to Norwich Pharmacal relief.

The Judge noted that the basic requirements before a Norwich Pharmacal order could be made were that:

(1)  a wrong had been carried out, or arguably carried out, by an ultimate wrongdoer;

(2)  an order was needed to enable action to be brought against the ultimate wrongdoer; and

(3)  the person against whom the order was sought was (a) mixed up in, so as to have facilitated, the wrongdoing; and (b) able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be pursued, relying  on – Mitsui & Co Ltd -v- Nexen Petroleum UK Ltd [2005] 3 All ER 511[21]; Collier -v- Bennett [2020] 4 WLR 116 [35].

As to (1), he noted that any type of wrong could be sufficient, whether civil or criminal. However, the applicant had to be the alleged victim of the crime [17].

As to (2), it was not necessary for the applicant to intend to bring civil proceedings: the information could be sought for other avenues of redress.  But the applicant had to demonstrate that an order for the information was necessary. That was a threshold condition, and not question of discretion, R (Omar) -v- Secretary of State for Foreign and Commonwealth Affairs [2014] QB 112 [30].  As such, if the applicant could obtain the information through other practical means, the relief would be refused.

As to (3), an applicant had to demonstrate that the respondent had been involved, in some way, in the alleged wrongdoing. A distinction was drawn between a person who was involved in the wrong and someone who was simply a mere onlooker or witness. Facilitation, as opposed to participation, in the wrongdoing was sufficient, R (Mohammed) -v- Secretary of State for Foreign and Commonwealth Affairs [2009] 1 WLR 2579 [71].  The applicable legal test is a strict one.  The Judge said that:

“[NML Capital -v- Chapman Freeborn Holdings Ltd [2013] EWCA Civ 589 [25]stands as clear and binding Court of Appeal authority that the defendant in a Norwich Pharmacal claim/application must be “involved in the furtherance of the transaction identified as the relevant wrongdoing”; having “some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered”” [105]

If the requirements for a Norwich Pharmacal order were satisfied, the court had a discretion whether to grant relief, The Rugby Football Union -v- Consolidated Information Services Limited (formerly Viagogo Limited) [2012] 1 WLR 3333 (“Viagogo“).  In that case Lord Kerr identified the following factors that would be included in the Court’s consideration ([17] and [25]) (“the Viagogo factors”):

(1) the strength of the possible cause of action contemplated by the applicant for the order;

(2) the strong public interest in allowing an applicant to vindicate his legal rights;

(3) whether the making of the order will deter similar wrongdoing in the future;

(4) whether the information could be obtained from another source;

(5) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing;

(6) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result;

(7) the degree of confidentiality of the information sought;

(8) the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed;

(9) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed. Before a Court makes an order requiring disclosure of personal data, it must first take into account and weigh in the balance the right to privacy with respect to the processing of personal data; and

(10) the public interest in maintaining the confidentiality of journalistic sources, as recognised in section 10 of the Contempt of Court Act 1981 and article 10 ECHR.

The Judge pointed out that Viagogo factors (2), (6), (8)-(10) require consideration of any relevant engaged Convention rights.  He noted that the Court of Human Rights has held that before granting a Norwich Pharmacal order, the court has to balance any engaged Convention rights (see Standard Verlagsgesellschaft mbH -v- Austria (No.3) [2021] ECHR 1029).

The Judge went on to say that Article 10

“protects both speech by an identified individual and anonymous speech. Whilst anonymity on the Internet can be used as a cloak behind which to harm others by unlawful acts, not all anonymous speech is of this character. Such speech, particularly in a political context, as a dimension of freedom of expression, can have a real value and importance … The modern equivalent of the anonymous pamphleteers of 200 years ago are anonymous online commentators, such as “The Secret Barrister”, for whom anonymity is an important dimension of the exercise of their rights of freedom of expression” [30].

As a result, the starting point is that where a Norwich Pharmacal order is sought to unmask an anonymous online poster, that order is likely to interfere with the privacy interests of the target [31].  The Court must consider whether there is a sufficient justification for interference with Article 8 and 10 rights: carrying out the familiar “parallel analysis” [32].

Nicklin J held that

“An intense focus on the comparative importance of the specific rights being claimed requires an applicant for a Norwich Pharmacal order to demonstrate more than simply an arguable case that s/he has been the subject of a civil wrong. S/he must show that a claim that has sufficient weight or substance to outweigh the countervailing rights of the target. Viagogo factor (1) requires, an assessment of the strength of the underlying claim relied upon, which is consistent with the obligation to examine the claim articulated in Standard Verlagsgesellschaft mbH. For practical purposes, this means that an applicant applying for Norwich Pharmacal relief must demonstrate, in the evidence in support of application, that s/he has, at least, a claim with a real prospect of success” [33].

In most cases, proper protection of any engaged Article 10/8 rights is likely to be achieved by making a careful assessment of whether there has been an arguable wrong and the strength of the identified cause(s) of action, and whether the public interest in allowing an applicant to vindicate his legal rights is outweighed by any countervailing interests of the target.

“Norwich Pharmacal orders will not be granted, speculatively to strip away online anonymity, unless the Court is satisfied that justice requires it. The danger of too lax an approach is obvious. The subject of an unfavourable publication may have many reasons for wanting to identify his/her online critic, not all of which would provide a justification for a Norwich Pharmacal order. The jurisdiction is not to be used to satisfy curiosity or to enable any form of revenge or retribution. It exists to do justice by enabling someone who can demonstrate that s/he has been the victim of an arguable wrong, for which s/he wishes to seek legitimate redress, to obtain an order from the Court that will assist him/her to do so by assisting in the identification of the wrongdoer” [41].

Finally, the Judge stressed that there is a burden of full and frank disclosure on the applicant and the Court must be made fully aware of all the factors that could fairly be raised by the absent target in opposition to the order that is sought:

“The applicant retains the burden of ensuring that the Court receives full and frank disclosure and Courts dealing with this type of Norwich Pharmacal application must be especially vigilant to ensure that the engaged Convention rights of the absent target are properly identified and considered” [45]

The Judge then considered the relevant principles of the law of defamation ([47] to [54]) and the law of malicious falsehood ([55] to [63]) and the submissions made by the applicant ([63] to [78]).

Decision

Finally, the Judge considered the application of these principles to the facts of the present application.

In relation to the first requirement, the Judge concluded that, even if the claimants could advance a defamatory meaning for each review

“the underlying claims in defamation are hopelessly weak. Without evidence of serious harm to reputation/serious financial loss caused by the publication of each Review, the defamation causes of action have no real prospect of success. Insofar as the Norwich Pharmacal application is based upon a claim for defamation, the Claimants have failed to demonstrate that a wrong has been carried out” [89]

However, the evidence showed a strong prima facie case that a number of the reviews raised were not genuine. On the basis of the evidence the fifth and sixth claimants had demonstrated a claim for malicious falsehood with a real prospect of success in relation to Reviews 2-8 and 11 that was sufficient to show that a wrong had been arguably carried out by at least one ultimate wrongdoer [96].

In relation to the second requirement, there was a need for an order if the fifth and sixth claimants were to be able to bring a claim against the alleged wrongdoer. There was no other readily available avenue to identify them.

In relation to the third requirement, the Judge held that, whilst it might be argued that the Defendant, by providing a Gmail address, has “facilitated” the relevant individuals signing up for a Trustpilot account, that is not the wrongdoing upon which the Norwich Pharmacal application is based.  However,

“The alleged wrongdoing is the subsequent use of the Trustpilot account to post the Review. In that second phase, the Defendant, in its provision of a Gmail account, has played no role; it has neither engaged in nor facilitated the alleged wrongdoing; nor has it furthered the posting of the Review. It can be tested this way. Once a person has registered for a Trustpilot account, even if the email account used for registration were to be deactivated (whether by that person or the Defendant), it would not prevent that person from posting a review on Trustpilot. If a Trustpilot account holder deactivated the registered email account, it might lead him/her to be in breach of Trustpilot’s requirement to maintain a valid email address, but again that does not involve or concern the Defendant. Once the Trustpilot account has been registered, the Defendant is, for all practical purposes, not involved in (and is powerless to control) what is posted using it. At the stage when each Review was posted, the Defendant was and is a mere witness to the anterior event of initial registration” [107]

As to discretion,  on the conclusions that had been reached, this did not arise.  However, the Judge held that if the fifth and sixth claimants could have demonstrated that the defendant had been mixed up in the arguable wrongdoing of those who had published Reviews 2-8 and 11, then an order would have been granted [111].

The application was refused. The applicant has sought permission to appeal from the Court of Appeal and a decision is awaited.

Comment

This judgment provides a full and thorough survey of the principles relating to Norwich Pharmacal applications.  In particular, the Judge made it clear that

  • Evidence should be provided to establish that the underlying claim against the “target” of the application has a real  prospect of success.  In a defamation case, issues such as reference and serious harm need to be expressly addressed.
  • A full explanation as to why it is said that the responded “facilitated” the wrong should be provided.
  • The applicant should give full and frank disclosure of all matters that could be raised by the “target”  in opposition to the order sought.
  • The balancing of the Convention rights of the applicant and the target should be expressly addressed.

The second and third points are important and require further consideration.

First, there is the point that the “facilitation” must be of the transaction identified as the relevant wrongdoing [105].  Although the Judge noted that the authorities are “not perhaps as clear as they might be” he regarded himself as bound by the Court of Appeal’s decision in NML Capital -v- Chapman Freeborn Holdings Ltd ([2013] EWCA Civ 589) to take this approach.  In this he followed his own, fuller, discussion of the point in Hayden -v- Associated Newspapers Ltd [2022] EWHC 2693 (KB) [53] to [56].   This conclusion is supported by the decision in the NML case but is, nevertheless, narrower than that taken by many practitioners in making Norwich Pharmacal applications – which are often directed at obtaining information about email addresses which have then been used, for example, to set up social media accounts.  As one  comment  on the judgment put it

“This decision will give pause for thought to parties who may have assumed that, once the email address behind an offensive or defamatory online review has been identified, the identity of its owner can be obtained almost as a matter of course via an application for a Norwich Pharmacal order”.

It will be interesting to see whether the Court of Appeal will revisit this issue if permission to appeal is granted.

The second point is perhaps less problematic.  This is the assertion that the applicant owes a duty of full and frank disclosure in relation to points which could be raised by the target.   Although not acknowledged, the Judge’s view on this is novel.  The point was considered (but not decided) by Arnold J in the case of Golden Eye (International) Ltd & Anor v Telefonica UK Ltd  [2013] EMLR 1.  He noted a submission (by an intervenor appointed by the Court) on behalf of the “target” that there should be such a duty but that counsel had

“acknowledged that there was nothing in the existing case law since Norwich Pharmacal was decided 40 years ago to suggest that applicants were subject to such a duty and that applications for Norwich Pharmacal orders were usually made on notice to the respondent, as in the present case” [85]

Arnold J said this argument might require further consideration in another case but was unnecessary because an intervenor was representing the target’s interests.    The authors of the leading textbook, Disclosure of Information: Norwich Pharmacal and Related Principles, suggest that there is much recommend imposing an obligation of full and frank disclosure (see p.281) and practitioners would be well advised to follow Nicklin J’s guidance.

In summary, this is an important and helpful judgment.  Any practitioner making an application for Norwich Pharmacal relief should begin by reading it and ensuring that the application is properly formulated  in accordance with the guidance provided.

Hugh Tomlinson KC is a member of the Matrix Chambers media and information group and an editor of Inforrm.