Richard (Raziel) Davidoff & Ors v Google LLC

A Norwich Pharmacal order requires an arguable wrong, a genuine need for disclosure, and a respondent involved in furthering the alleged wrongdoing. A person who merely holds relevant information as a witness is insufficiently involved.

Where the application concerns anonymous online speech, the claimant must show a real prospect of success in the underlying claim. For defamation, this includes evidence of serious harm under Defamation Act 2013 section 1. For malicious falsehood, falsity and malice must be supported by evidence. Supplying an email account used only to register with another platform does not make the email provider mixed up in later publications.

The claimants operated a property-management and estate-agency business and complained of allegedly fake Trustpilot reviews. They had obtained an earlier Norwich Pharmacal order against Trustpilot, which identified Gmail addresses associated with the reviews. They sought subscriber information from Google to identify the persons controlling those addresses.

The court considered potential claims in defamation and malicious falsehood, the requirements for Norwich Pharmacal relief, the involvement of Google in the alleged wrongdoing, and the competing privacy and expression rights of anonymous reviewers. Google took a neutral position and did not attend the hearing.

1. The application was refused. Review 9 was withdrawn. Only the Fifth and Sixth Claimants demonstrated an arguable wrong, and only in relation to Reviews 2, 3, 4, 5, 6, 7, 8 and 11. The First to Fourth Claimants did not establish an arguable wrong. Reviews 1 and 10 lacked sufficient evidence of falsity and malice.
2. The applicant had to establish the requirements identified in Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511: an arguable wrong, need for the order, involvement of the respondent in the wrongdoing, and the ability to provide useful information. Necessity was a threshold condition. The applicant had no other readily available means of identifying the alleged wrongdoers.
3. The decisive issue was whether Google was mixed up in the wrongdoing. Applying NML Capital v Chapman Freeborn Holdings Ltd [2013] EWCA Civ 589, the court had to identify precisely the alleged wrongdoing and ask whether the respondent had facilitated its furtherance. Google supplied email accounts used to register Trustpilot accounts, but there was no evidence that Google played any role when the reviews were subsequently posted. Google was therefore a mere witness. Maintaining the email accounts and using false registration names made no difference.
4. The defamation claims had no real prospect of success because the evidence did not establish reference to the individual claimants, serious reputational harm, or serious financial loss for the companies under section 1 of Defamation Act 2013. The malicious-falsehood claims concerning the two groups of reviews had a real prospect of success. Linked IP addresses, multiple accounts and false identities provided a credible basis for inferring falsity and malice. Section 3(1) of Defamation Act 1952 gave the companies a credible route to establish pecuniary loss.
5. The court did not need to exercise its discretion because Google was not sufficiently involved. Had that requirement been satisfied, the The Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] 1 WLR 3333 factors would have supported an order. The court also emphasised the importance of full and frank disclosure on this type of application, particularly where the anonymous target is absent.