Sheffield Wednesday Football Club Ltd & Ors v Hargreaves

A Norwich Pharmacal order may be made where a wrong has arguably been committed, the applicant needs disclosure to sue the wrongdoer, and the respondent is mixed up in the wrongdoing and can provide the necessary information. The court retains a discretion and must balance the applicant’s right to protect reputation against the anonymous user’s privacy and freedom of expression. Disclosure is disproportionate for postings that are trivial, plainly humorous, barely defamatory or merely abusive. It may be justified for allegations of greed, dishonesty, untrustworthiness or comparable serious misconduct, particularly where the website’s rules prohibit defamatory material and there is no confidentiality policy.

The claimants brought a Part 8 claim for Norwich Pharmacal relief against the operator of a football supporters’ website. They wished to identify anonymous users who had posted allegedly defamatory messages so that libel proceedings could be brought. The defendant did not oppose a proper order but left the question to the court.

The court had to determine whether the jurisdictional conditions were satisfied and, if so, whether disclosure was proportionate in respect of each posting. It also assessed the defendant’s costs of responding to the application.

1. Norwich Pharmacal jurisdiction. The court applied the three conditions identified in Mitsui Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch): an arguable wrong by an ultimate wrongdoer; a need for disclosure to enable proceedings to be brought; and a respondent mixed up in the wrongdoing who could provide information enabling the wrongdoer to be sued. The publications had to be arguably defamatory and at least arguably false. Those threshold requirements were satisfied.
2. Discretion and privacy. Following the guidance in Totalise PLC v The Motley Fool Ltd [2002] EWCA Civ 365, the court took care not unjustifiably to invade the privacy of anonymous website users who were not before it. It also considered the factors identified in the earlier decision reported at [2001] EMLR 750, including the strength and seriousness of the claim, the persistence and readership of the alleged campaign, the availability of other means of identification, and the website’s confidentiality policy.
3. The court refused disclosure for postings that were trivial, barely defamatory, plainly intended as jokes, mildly abusive, or no more than ordinary complaints about club management. Disclosure was proportionate for postings which could reasonably be understood as alleging greed, selfishness, dishonesty, bad faith or untrustworthiness. The website rules restricting defamatory material and the absence of a confidentiality policy were relevant factors.
4. The order was therefore made only for the users responsible for postings 1, 3, 5, 9 and 13. The claimants were to pay the defendant’s reasonable costs of the application and compliance. Those costs were assessed at £9,000 before VAT, after separating the Norwich Pharmacal work from work directed to the underlying substantive claim and applying proportionality.