The BBC has been ordered to hand Sheffield Wednesday chairman Dave Allen the details it holds on two individuals who posted comments critical of the club chief on a Five Live website.
It is believed to be the first time that the BBC has been told to hand over such information by an order made under the Norwich Pharmacal jurisdiction in connection with online postings, and came before a similar order against in another case involving Sheffield Wednesday last week.
The comments, which criticised Allen, were posted in August on the BBC’s Radio Five Live 606 online forum.
BBC moderators removed them after Allen’s lawyers notified the corporation that they believed they were defamatory.
Allen asked the BBC to supply him with details of the two individuals who posted the comments – they used the noms de plume ‘Enchanted_Fox’ and ‘Rocket’ – so that he could launch legal action against them.
Users of the 606 website have to register, supplying information identifying themselves. The BBC, which adopted a neutral stance, said it would only give the information if ordered to do so by a court.
Mr Justice Field made the order at a hearing in the High Court on 12 October.
But the judge ordered Allen to pay the corporation’s costs, rejecting Allen’s argument that he should not be liable for the Corporation’s costs as it was unnecessary for the corporation to attend the hearing or be represented by specialist media counsel.
Mr Justice Field said the BBC was a national public service broadcaster and there was a public interest in its being represented and able to assist the court if necessary.
The corporation’s neutral stance was understandable and responsible, he said .
As a general rule, orders can be obtained under the Norwich Pharmacal jurisdiction if would-be litigants can demonstrate to the court that an arguable wrong has been committed, that they need the information to protect their position, and that the party being asked to supply the information is involved in the matter, even if only innocently.
In a second recent case involving Sheffield Wednesday, Allen and other directors of the club won an application for a Norwich Pharmacal order against the operator of the Owlstalk supporters’ website in relation to the identities of members who had posted a number of messages they claimed were defamatory. The defendant adopted a neutral stance to the application.
Richard Parkes QC, sitting as a deputy High Court judge, refused to order the disclosure in relation to nine of the 14 messages involved in the application, holding that while they were technically capable of being defamatory, they did not amount to serious attacks on the claimants’ integrity.
In Totalise PLC v The Motley Fool Ltd, the Court of Appeal had, said Mr Parkes, taken the view “that a judge might refuse disclosure of the identity of an alleged wrongdoer whose attacks, though legally defamatory, were so obviously designed merely to insult as not to carry a realistic risk of doing the claimant quantifiable harm”.
He added: “In other words, it is relevant to the exercise of the discretion to consider whether the words complained of were, even if strictly defamatory, more than a trivial attack which would not be taken seriously.”
But he ordered disclosure of the identities of those responsible for the other five postings, which had alleged greed, untrustworthiness and dishonesty.
The judge said that the rights of the website members to anonymity and freedom of expression were outweighed by the claimants’ right to reputation.
He had also taken into account that the members, by their postings, had breached the website’s rules prohibiting defamatory material, and that the website did not have any policy of confidentiality for the benefit of the members.
The judge ordered the claimants to pay the defendant’s costs of the hearing.