Last month, the High Court ordered the owner of the OwlsTalk forum website for fans of Sheffield Wednesday football club to reveal the true identities of three people who had posted supposedly defamatory comments.
In an earlier judgment on 12 October, the BBC was ordered to disclose the true identities of two vociferous Sheffield Wednesday fans to the club’s chairman, Dave Allen – again over comments made online.
In both cases, Sheffield Wednesday had relied upon the principles established in the case of Norwich Pharmacal v Customs & Excise Commissioners (1974). The Norwich Pharmacal jurisdiction and principles are well-established and have been used in numerous situations where it is necessary to seek information from a third party that is innocently mixed up in the wrongdoing of another.
Recent examples include the British Phonographic Industry, which has on several occasions obtained orders from the High Court requiring internet service providers to disclose the identities of individuals infringing copyright by sharing music via peer-to-peer networks.
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What needs to be shown for a Norwich Pharmacal application to succeed is:
• that a wrong has been carried out, or arguably carried out
• that there is a need for the order to be made to enable action to be brought against the ultimate wrongdoer
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• and the person against whom the order is sought is mixed up in, or facilitated, that wrongdoing (albeit innocently), or has some relationship with the wrongdoer and is able to provide information necessary to enable the wrongdoer to be identified.
As the Sheffield Wednesday cases demonstrate, even if all three of these requirements are fulfilled, the court still has discretion as to whether or not to grant the order. Judge Richard Parkes QC concluded in the OwlsTalk case that each of the three thresholds had been met, in that each of the postings on the forum website was arguably defamatory; that the claimants had no other way of finding out who the authors of the words were; and that the website owner had, albeit innocently, facilitated the wrongs. But he only exercised his discretion in relation to five of the 14 postings complained of.
As to the remaining postings, the judge said: ‘It seems to me that some of the postings which concern the claimants border on the trivial and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory, or little more than abusive or likely to be understood as jokes.”
Both the OwlsTalk and the BBC case confirm that it is perfectly proper for journalists to resist revealing source information, even where there is evidence of wrongdoing, until a court order has been obtained.
In both cases, the claimants were ordered to pay the legal costs of the parties on the receiving end of the order. Mr Justice Field said that the BBC’s neutral stance, forcing the application to court, was both ‘understandable and responsible”.
Neil Parkes is a solicitor for Wiggin LLP
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