Identifying The Perpetrator Of False Online Reviews/Defamatory Comments

The vale of anonymity that the internet provides can be advantageous for those wishing to leave genuine online feedback in the form of reviews to warn others about their experience with a particular provider. Unfortunately, the vale of anonymity can and is regularly abused. Individuals have been known to make all sorts of wild, inappropriate, and untrue accusations online, seemingly feeling like they are out of reach of the law/any repercussions.

In the recent case of Davidoff and others v Google LLC [2023], the Court analysed how far the law is willing to go in terms of identifying the perpetrators of defamatory comments online.

Davidoff and others v Google LLC

Case background

Four of the Claimants are members of the Davidoff family, who are involved in the operation of two property management businesses, which were also noted as Claimants to the action.

The underlying claim related to comments made on the website Trust Pilot about the individual Claimants as well as about the Companies, which the Claimants said were untrue and defamatory. The Claimants had successfully applied against Trust Pilot in terms of obtaining the email addresses and IP addresses of the perpetrators. All of the email addresses were Gmail accounts and accordingly, the Claimants applied to Court against Google LLC to further attempt to identify the perpetrators. Google adopted a neutral stance and confirmed that it would comply with any order made.

The Court considered the long-established principles in respect of this sort of application, known as a Norwich Pharmacal application, so named after the case in which the principles were first established. In order to succeed in an application, the Claimant must show:

When considering the above factors, the Court must weigh in the balance the Human Rights of the person that posted the comment in terms of freedom of expression against the rights of the subject of the comments to his/her right to private and family life.

When the Court analysed the posts in this matter, it found that the individual Claimants had very poor prospects of being able to satisfy the Court that they had suffered serious harm, a core requirement for a successful claim in defamation proceedings. The Court further established that, whilst the corporate Claimants could at face value argue an inference of serious harm, they too could not succeed as Google LLC could not be deemed to be ‘mixed up’ in the allegations made. The Court formed this view on the basis that Google LLC had provided the individuals making the posts with email addresses but that was not what the alleged wrong in the case related to; rather the alleged wrong was posting alleged malicious/untrue comments on Trust Pilot, a website that Google LLC had nothing to do with. The Judge, therefore, refused the application.

Comment

This case is interesting as the Claimants succeeded in obtaining a Norwich Pharmacal order against Trust Pilot previously but failed against Google LLC. It demonstrates the need for there to be a clear link between the facilitator of wrongdoing and the alleged wrong committed before the Court will grant an order requiring a third party to provide information about the identity of the wrongdoer.