Anonymity Online

In a recent judgment of the European Court of Human Rights, the Court considered whether the anonymity of a comment posted online should be maintained.

The commenter made comments such as reference to ‘Corrupt politician-arseholes’ and ‘ongoing Nazi revival’ under an article published by Der Standard newspaper about a political party. In a first instance decision, the Austrian Courts held that the identity of the individual should be revealed.

In the UK, there is a similar principle in favour of disclosure of the identity of a wrongdoer in England and Wales established in the case of Norwich Pharmacal v Customs and Excise Commissioners [1973], which confirmed the following test for the Court to exercise its discretion:

1. There must be clear evidence of a breach by the wrongdoer;
2. The order will most likely provide a substantial benefit to the Claimant; and
3. The discovery sought is not unduly wide.

The Austrian Courts’ decision was appealed to the European Courts of Human Rights, which found that the order requiring disclosure breached the newspapers Article 10 Human Right to freedom of expression. The Court in its judgment stated that the commenter did not qualify as a journalistic source but the anonymity was ‘capable of promoting the free flow of opinions, ideas, and information’ and accordingly should be preserved so as to allow freedom of the press.

Whilst this case relates to an Austrian Court decision, it could well have ramifications here. At present, the European laws on Human Rights became part of UK law by virtue of the Human Rights Act 1998. Whilst the Government is looking at reform of the Human Rights regime it has not yet done so and accordingly the fact that we have now left Europe does not stop the judgments of the European Court of Human Rights from having an impact on the decisions of the Courts of England and Wales. Interestingly, it is definitely arguable that the decision of the Norwich Pharmacal case is consistent with the recent judgment of the European Court of Human Rights for the reasons set out below:

1. The Norwich Pharmacal jurisdiction of the Court is entirely discretionary and not compulsory;
2. The impact of the right to freedom of expression may well have acted as a defence for the individual posting the comments if the identity was disclosed and accordingly there would be a question mark over the prospects of success of such a claim; and
3. Accordingly, could it be said that a substantial benefit would be bestowed on the Claimant in the event disclosure was made?

Comment

As this judgment demonstrates, even the very first step in defamation proceedings in obtaining details of the identity of a person posting comments online anonymously is a complex legal area and accordingly, expert legal advice should be sought as soon as possible, especially given that claims of defamation must be issued at Court within 12 months of the date of the comment being made.