The High Court has ordered the operator of a football club fan website to disclose the identity of five users of the site in relation to the posting of allegedly defamatory messages concerning the club's management. However, the court refused to disclose the identity of nine other users, finding that their messages were of a more trivial nature. The court set out some clear guidelines as to when a court can require a website operator to disclose the source of defamatory material by way of a Norwich Pharmacal order, which build on the principles first set out in the Motley Fool case. Case: Sheffield Wednesday Football Club Limited and others v Neil Hargreaves, 18 October 2007.
The court has jurisdiction to make an order for the disclosure of the identity of a wrongdoer against anyone who, albeit innocently, becomes involved in the wrongful act of another (Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133). In Totalise PLC v The Motley Fool Limited [2001] EMLR 750, the High Court granted Norwich Pharmacal relief to the claimant, holding that the website operators should disclose the identity of the source of defamatory material posted anonymously to their discussion boards).
The Data Protection Act 1998 (DPA), which implemented the EC Data Protection Directive (95/46/EEC) (Data Protection Directive), imposes broad obligations on those who collect personal data (data controllers), as well as conferring broad rights on individuals about whom data is collected (data subjects). In addition to the general fairness requirement, a data controller must meet at least one of the conditions in Schedule 2 to the DPA, including that:
"The processing is necessary for the legitimate interests of the data controller or a third party to whom the data is disclosed, except where the processing is unwarranted because it is prejudicial to the rights and freedoms or legitimate interests of the individual concerned" (paragraph 6(1)).
The eight claimants comprised Sheffield Wednesday Football Club Limited (the Club), its chief executive and directors, and the chairman of Sheffield Wednesday PLC (which owned all the shares in the Club).
The claimants sought Norwich Pharmacal relief against the defendant, Neil Hargreaves. Mr Hargreaves owned and operated a website, www.owlstalk.co.uk, on which fans of Sheffield Wednesday football club posted messages on matters relating to their club. The website was freely accessible to anyone with internet access. Users registered as members by providing an e-mail address and password, and then giving a user name (invariably a pseudonym) by which they identified themselves when making a posting. When a member registered for the website, he agreed not to use the bulletin board to post any material which was, among other things, knowingly false or defamatory.The claimants wanted to bring libel proceedings against 11 members of Mr Hargreaves' website in relation to 14 messages which they had posted between 24 July 2007 and 3 August 2007. The claimants alleged that the postings, which largely concerned the claimants' management of the Club, were defamatory.
The defendant did not oppose the claimants' application for Norwich Pharmacal relief and disclosure of the identity of the 11 members, but was not prepared to consent to it.
Richard Parkes QC, sitting as a deputy High Court judge, ordered the website operator to disclose the identity of five of the members of his website, but not the other nine requested by the claimants.The deputy judge's reasoning is summarised below.
General principles
Referring to the Court of Appeal's decision in the Motley Fool case (see above), the deputy judge said that a court must be careful not to make a Norwich Pharmacal order which unjustifiably invaded the right of an individual to respect for his private life, especially when he was not a party to the proceedings. The deputy judge held that equally an order should not be made for the disclosure of the identity of a data subject (whether under the Norwich Pharmacal doctrine or otherwise) unless the court had first considered whether the disclosure was justified having regard to the rights and freedoms or the legitimate interests of the data subject (Schedule 2, paragraph 6(1), DPA).
According to Lightman J in Mitsui Limited v Nexen Petroleum UK Limited [2005] EWHC 625 (Ch), there were three conditions which had to be satisfied before the court could grant Norwich Pharmacal relief:
· A wrong must have been carried out or arguably carried out by an ultimate wrongdoer.
· There must be the need for an order to enable action to be brought against the ultimate wrongdoer.
· The person against whom the order was sought must be mixed up in the wrongdoing so as to have facilitated it, and must be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
The deputy judge explained that even if these conditions were met, the court retained a discretion whether or not to make an order. Matters relevant to the exercise of this discretion (as set out in Motley Fool) included the strength of the claimant's case; the gravity of the defamatory allegations; whether it was part of a concerted campaign; and whether the defendant had a confidentiality policy for website users.
Applying the above principles to the facts, the deputy judge said that he accepted that Lightman J's second and third conditions were met (the claimants had no other way of finding out the authors' identity, and Mr Hargreaves had facilitated the alleged wrongdoing by giving users the means to address other users), but the deputy judge was more hesitant about the first condition. However, he concluded that the words in the postings met the threshold tests of being arguably defamatory and at least arguably false.
The claimants argued that the court should exercise its discretion and grant relief as there was a strong prima facie case against all the 11 members. However, the deputy judge held that nine of the postings bordered on the trivial and it would not be right to make an order for disclosure where the messages were barely defamatory, little more than abusive or likely to be understood as jokes: that would be disproportionate and unjustifiably intrusive.
The deputy judge found that the remaining five postings were more serious as they could reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour by the claimants. Consequently, the claimants' entitlement to take action to protect their reputation outweighed the authors' rights to maintain their anonymity and to express themselves freely. In reaching this decision, the deputy judge took into account the website restrictions on the use of defamatory language and the absence of any confidentiality policy for users.
It is not clear from the judgment whether the website operator has details of the users' postal addresses or just their e-mail addresses. If he can only provide e-mail addresses to the claimants, they may have to make a further Norwich Pharmacal application against the internet-service providers to establish the users' identities so that the claimants can bring libel proceedings against them.
Case: Sheffield Wednesday Football Club Limited and others v Neil Hargreaves [2007] EWHC 2375 (QB), 18 October 2007 (Richard Parkes QC (sitting as a Deputy Judge of the Queen's Bench Division); Aidan Eardley (instructed by Kirkpatrick & Lockhart Preston Gates Ellis) for the claimants and Caroline Addy (instructed by George Davies) for the defendant).Source:Practical Law.
