Clift v Clarke

A Norwich Pharmacal order requires an arguable wrong, a need for disclosure to enable proceedings against the alleged wrongdoer, and a respondent mixed up in the wrongdoing who can provide relevant information. Satisfaction of those conditions does not compel disclosure. The court retains a discretion, balancing the strength and seriousness of the proposed claim against the privacy rights and legitimate expectations of anonymous website users and the confidentiality policy of the intermediary. Disclosure should be refused where the proposed defamation claim is weak, marginal and highly likely to fail, and the online comments are plainly casual, contextual and incapable of causing realistic reputational harm. In such circumstances, disclosure may be disproportionate, particularly where there is no evidence of a concerted campaign.

The claimant sought a Norwich Pharmacal order against the editor of Mail Online to obtain information identifying two anonymous users who had posted comments beneath articles reporting her successful libel claim against Slough Borough Council. She intended to bring defamation proceedings against the posters, identified as “Bob” and “Chris Jones”.

The defendant accepted that the three conditions for engaging the Norwich Pharmacal jurisdiction were met, but opposed disclosure on the basis that the proposed claims were very weak and that disclosure would unjustifiably interfere with the posters’ privacy rights and legitimate expectations under the website’s privacy policy. The central issue was whether disclosure should nevertheless be ordered in the exercise of the court’s discretion.

1. The application was refused. The three conditions for the Norwich Pharmacal jurisdiction were satisfied: there was an arguable wrong, the claimant needed information to identify the alleged wrongdoers, and the defendant was mixed up in the alleged wrongdoing and might hold information enabling proceedings to be brought. The court nevertheless retained a discretion whether to order disclosure.

2. Relevant discretionary factors included the strength of the proposed claim, the gravity of the allegations, whether there was a concerted campaign, the potential readership, the anonymity permitted by the website, the availability of other practical means of identification, and the defendant’s confidentiality policy. The court also had to consider the posters’ Article 8 rights and the requirements of the Data Protection Act 1998.

3. The comments had to be assessed in the context of the articles and the other postings. They were brief, anonymous contributions by persons who did not purport to possess relevant knowledge. A reasonable and sensible reader would not take them seriously or understand them to bear the defamatory meanings alleged by the claimant. The comments were essentially casual “pub talk”, rather than serious allegations.

4. The proposed claims were weak and marginal and were highly likely to fail. There was no evidence of a concerted or damaging campaign, and the comments had been removed. Although the privacy policy prohibited defamatory or abusive comments and permitted disclosure where required by law, it created a legitimate expectation that personal information would not be disclosed without consent. Balancing all the circumstances, disclosure would be disproportionate.