Unmasking anonymous trolls: the reach of a Norwich Pharmacal Order

On 28 July 2023, the High Court handed down an important decision in the tools available to potential claimants seeking to unmask anonymous posters and take legal action.  The decision may be considered a setback in individuals and organisations seeking to take legal action to prevent attacks upon their reputations, such as through the misuse of review platforms by repeated false harmful postings, or infringement of privacy rights, such as through online hacking.    

It may surprise you that the Court can order a third party provide you with information about an anonymous account holder, to enable you to identify the individual and take action.  These are referred to as Norwich Pharmacal Orders (and the name derives from the case that established this route to obtain information from a third party).  This recent decision looks at how far the Court can go in ordering the disclosure of information on an application for a Norwich Pharmacal Order (which we will refer to as a NPO).

Facts

Briefly, the facts of Davidoff and 5 others v Google LLC [2023] EWHC 1958 (KB) are that the six Claimants issued a claim seeking a NPO against Google to identify the individual/individuals behind certain Google email accounts.  Of the six Claimants, two were corporate entities that operated a property management business and estate agency, and the four individual Claimants were members of the family run business.  The Claimants wanted to bring claims in defamation and malicious falsehood, as they alleged that they were the victims of “fake reviews” posted by several people on the platform Trustpilot.  It was alleged that the Reviews could be grouped by themes, in which allegations such as rudeness, aggression or incompetence were made, and where the majority were posted from accounts that had only one activity in posting that single review, or otherwise had posted one star reviews of other businesses.

This was the second NPO sought by the Claimants, as they had successfully obtained a NPO against Trustpilot that enabled them to identify the email addresses associated with the accounts that had posted the defamatory reviews.  Each email account was registered with Google.  Google took a neutral position in the application, confirming that it would comply with any order the Court made.

The case explored the merits of the underlying defamation and malicious falsehood claims, the evidence required to satisfy a Court that there is a prima facie case to engage the threshold for a NPO, and the legal test to grant an NPO.

The reach of a NPO

Given the significance of this decision, the application was designated to Mr Justice Nicklin.  In a detailed judgment, Mr Justice Nicklin set out the legal principles and explored the balance of a claimant’s article 8 rights, and the article 8 and 10 rights of an anonymous poster.  A claimant must show, through the strength of their legal claim, their rights outweigh those of the intended target.

Mr Justice Nicklin referred to the Court of Appeal decision in Motley Fool, where it was commented that Article 10 protects speech by both identifiable individuals and anonymous speech.  Anonymity can be used as a cloak, for anonymous trolls to seek to hide behind, but not all anonymous speech is unlawful; it can contribute to public debates or be used by whistle-blowers.   

Before an NPO is made, a claimant must satisfy the following requirements:

(a)    be able to demonstrate that a wrong has been carried out, or arguably carried out, by the ultimate wrongdoer (in this case those posting the Reviews);

(b)    there must be a need or necessity for the Court to make the order to enable a claimant to take action against the ultimate wrongdoer.  If there is another way to obtain that information, a claimant should explore that route.  Secondly, a claimant does not necessarily need to bring legal proceedings, the information could be used for other avenues of redress; and

(c)     the person against whom the order is sought (in this case Google) must: (a) be mixed up in, have facilitated, the wrongdoing and (b) be able to or likely to provide the information necessary to enable the ultimate wrongdoer to be pursued.

Each of the above elements must be satisfied.  We will look at the final hurdle. 

A critical feature in a successful NPO application is demonstrating that the respondent to the application has been involved, in some way in the alleged wrongdoing.  They must be more than a “mere witness”.  Facilitation as opposed to participation is sufficient.  

As mentioned at the outset, the Claimants were making their second NPO application, having first made a successful application involving Trustpilot.  As the host of the website on which the “fake reviews” were posted, Trustpilot had (at least) facilitated the publication that is alleged to be defamatory.  It was alleged that the Trustpilot accounts were created with false names, which is why this second application was brought.  The Claimants alleged that if the posters had acted honestly and in accordance with Trustpilot’s terms, they would have provided their true identities, and such information would then have been disclosed pursuant to the first NPO. Trustpilot’s terms permit “…one user account and it should involve a real person.  Your username, profile description and picture must reflect who you are (don’t go impersonating other people, thanks)...Your user account needs to be connected to a valid, permanent email address in case we need to contact you…”

Whilst the Judge was understanding that there was evidence that one person was behind the reviews, and grounds to infer that not all were genuine, and that the two corporate Claimants had a real prospect of demonstrating an actionable claim with the only way to proceed with those claims was to obtain information about the alleged wrongdoer, the Court was unable to grant the NPO for the following reasons.

On a careful analysis the Judge held that whilst Google providing a Gmail email address “facilitated” the setting up of a Trustpilot account, that is not the wrongdoing on which the NPO application was based.  It was the use of that account, and in that second phase of activity, Google played no part.  Once registering with Trustpilot, the email account could be deactivated and that would not stop them posting.  It may place them in breach of Trustpilot’s terms but that does not involve Google.  At the stage where a post is published, Google is a “mere witness.”

On the facts of this case, and Google’s limited involvement, no NPO was granted. 

Looking ahead

The Judgment does not mean that you cannot seek to identify who is behind an anonymous account to take further action.  NPO are one “tool” in the armoury available to potential claims.  Claimants can explore obtaining what are referred to as a “Spartacus order”.   These are orders requiring a potential defendant to identify themselves. (The Judgment refers to the Claimants having sent a letter by email to each of the targeted Gmail accounts, asking whether the individual would identify themselves.  It was said that no response was received to any of those emails.)  It is also possible to obtain orders and damages against “persons unknown”, where the identity of the guilty party has not been identified, to restrain the disseminating of information.  The Courts have shown a willingness to embrace advances in technology and permit service of legal proceedings through Facebook or Twitter.

You may also be able to take action against the platform. 

We may see further development as part of the Government’s much awaited Online Safety Bill.   The proposed bill includes two new duties aimed to protect against anonymous abuse: (1) giving users the ability to block anonymous trolls from their feed, and a requirement to verify account holders and (2) being able to opt out of harmful content.