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Your secret is safe with me...or is it? A brief guide to Norwich Pharmacal orders
10 June 2011

In recent years there has been a proliferation of websites which allow individuals to comment freely and, in many cases, anonymously on all manner of issues. In recent weeks the use of such websites has come under much media scrutiny. Whilst many welcome the freedom of speech that the internet can offer, what happens when those comments go beyond what might be considered to be acceptable and stray into the realms of defamation and harassment?

Furthermore, cyberspace also allows files to be shared easily and so may allow other wrongdoers to try to evade liability for matters such as breach of copyright by hiding their identities. The enormous potential audience on the internet can mean that very real damage can be done to reputation or other commercial interests in a very short time. How then can the wrongdoer be identified?

In these situations the court has become increasingly willing to allow the use of what are known as Norwich Pharmacal orders to allow those with a potential claim to track down the author or wrongdoer.

What is a Norwich Pharmacal order?

Although decided long before the advent of the internet, the principles set down in the case of Norwich Pharmacal Co v Customs & Excise Commissioners [1974] have been adapted to address the realities of the online world. In the case, Norwich Pharmacal wanted to discover which company was importing one of its patented products into the UK without a licence thus infringing its patent. It applied to court for an order that Customs & Excise should disclose the identities of the importers, which it knew from import documentation which had to be lodged when the imports were brought into the country. The case went all the way to the House of Lords which granted Norwich Pharmacal the order it sought. The principle on which the order was based was described in the following terms:

“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

What must a claimant demonstrate to obtain an order?

To satisfy the court that it is appropriate to grant an order the applicant needs to demonstrate the following:-

  • That it has at least an arguable case that there has been wrongdoing. The applicant must identify the wrongdoing on which it relies in general terms.
  • That the purpose of the application is to take “some kind of action”. This does not necessarily mean starting legal proceedings but could include, for example, dismissing an employee who has leaked confidential information.
  • That the person against whom the order is sought is mixed up in the wrongdoing so as to have facilitated it and must be able or likely to be able to provide the information.
  • That the information cannot be obtained by other means.

Even if the above conditions are met, the court must still have regard to the interests of justice and consider whether it should exercise its discretion to make the order. Matters relevant to the exercise of discretion include: the strength of the prima facie case against the wrongdoer, the seriousness of the allegations, whether the wrongdoer was waging a concerted campaign against the claimant, size and extent of the possible readership in the case of online publications, the fact that the wrongdoer hid behind anonymity, whether the claimant had other practical means of identifying the wrongdoer and whether the defendant had a policy of confidentiality for users of the website.

Examples of Norwich Pharmacal orders

Some recent examples of the application of Norwich Pharmacal orders in relation to misuse of the internet include:

  • The Rugby Football Union v Viagogo Limited [2011] EWHC 764.

    The court granted an order to the RFU to discover the identity of individuals who had been selling tickets online on the www.viagogo.co.uk and www.viagogo.com websites. The terms on which RFU tickets are sold prevent them from being advertised for transfer or sale. There was no allegation in the proceedings that Viagogo was acting unlawfully but it was RFU’s case that Viagogo was facilitating wrongdoings perpetrated by others and it was therefore entitled to discover the identity of those wrongdoers from Viagogo.
  • Carlyle Group v BT [2011] All ER (D) 84 (Feb)

    Emails belonging to an employee of Carlyle were “hacked” and forwarded to news organisations. The court granted an order requiring BT to provide details of the ISP address of the “hacker”.
  • Sheffield Wednesday Football Club Limited v Hargreaves [2007] EWHC 2375

    The website in question allowed Sheffield Wednesday fans to post comments on matters relating to the club. The claimants wanted to issue libel proceedings against individuals who had posted certain messages and so sought an order that the operator of the website disclose the details of the posters. The court refused the order in relation to users who had posted messages which were barely defamatory, little more than abusive or likely to be understood as jokes. The court allowed the order in respect of those postings which it considered alleged greed, selfishness, untrustworthiness and dishonest behaviour on the part of the claimants.

A word of caution…

In Media CAT Limited v Adams and others [2011] EWPCC 6, Norwich Pharmacal orders had been granted in relation to alleged copyright infringement as a result of the use of peer to peer file sharing software on the internet. The orders were against ISPs requiring them to identify the names and addresses of subscribers based on IP addresses at a given date and time. The orders resulted in tens of thousands of names being provided by the ISPs. Although the judgment was in connection with other later procedural issues, HHJ Birss QC also discussed the wider implications of the future use of Norwich Pharmacal orders in this type of case. He explained that he did not imagine the court had granted the orders with a view to “setting in train an exercise that was to be conducted in the manner that has subsequently emerged”. He highlighted the following points:

  • If a Norwich Pharmacal order is granted in a case such as this in the future (i.e. one which might involve multiple defendants) consideration should perhaps be given to making a group litigation order.
  • Consideration might be given to having some form of supervision from an experienced neutral solicitor, similar to that required for search and seizure orders.

It is likely as a result of the case that the court will take a much more proactive role in policing the use of Norwich Pharmacal orders in cases against multiple alleged infringers.

For more information about the issues raised in this article or to find out more about how the Dispute Resolution team can help you please contact Mike Robinson on 0118 952 7206 or email[email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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