EWHC 2375 (QB)
Sheffield Wednesday (The Owls), its directors, chief executive and manager brought these proceedings against a fan, Neil Hargreaves, who owns and operates a fans’ website www.owlstalk.co.uk. They sought the names and details of 11 other fans whom they wish to sue for 14 allegedly false and defamatory comments posted on the site between 24 July and 3 August 2007.
The site permits users to register as members with their email address and password. They can post messages by identifying themselves with their user name which is invariably a pseudonym. The messages in question are alleged to be part of a campaign of deliberate vilification. In seeking this information, the claimants relied upon the Norwich Pharmacal jurisdiction which permits a person innocently caught up in the wrongdoing of another, so that he is more than a witness or bystander, to be compelled to disclose the identity of the wrongdoer in order that proceedings can be taken against him.
The judge divided the messages into two categories: those which were little more than abusive or likely to be understood as jokes and those which could reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the claimants. He ordered Mr Hargreaves to disclose the details of the fans who had posted messages in the second category only – these fans were “halfpint”, “Ian”, “Vaughan” and “DJ Mortimer”.
Comment: for a full flavour of the jokes, and “saloon-bar moanings about the way the club is managed”, you will have to read the judgment. The deputy judge (Richard Parkes QC, one of the editors of Gatley on Libel and Slander) adopted a de minimis approach to the problem and in that way protected the privacy and freedom of speech of several of the fans by refusing to order the disclosure of their identity. He noted that a court must be careful not to make a Norwich Pharmacal order which unjustifiably invades the right of an individual to respect for his private life nor should an order be made for the disclosure of the identity of a data subject unless the court has first considered whether the disclosure is justified having regard to the rights and freedoms or the legitimate interests of the data subject. Drawing the right line between these rights and those of individuals defamed online is a problem which is going to continue. It is not clear from the judgment whether the website operator has details of the users' postal addresses or just their e-mail addresses. If he can only provide e-mail addresses, the claimants may have to make a further application against the internet service providers (ISPs) to establish the users' identities.
Cases since the introduction of the CPR have extended the scope of the Norwich Pharmacal remedy significantly. It is not necessary for the claimant to wish or intend to bring proceedings against the wrongdoer (Ashworth Hospital Authority v MGN Ltd). It is no longer necessary always for the claimant to prove an arguable tort and there is now no problem using the remedy where what is alleged is a breach of contract or equitable wrong, or a crime (P v T). It may be possible to obtain disclosure where the name of the wrongdoer is known, but not every piece of what the claimant needs to plead a case is fully in position (Carlton Film Distributors Ltd v VCI Plc) although if a case can be pleaded, disclosure will not be ordered. These decisions indicate that the courts will continue to use this jurisdiction creatively where justice requires it.