In the modern digital age, the potential for defamatory comments to reach a wide audience has never been greater. Defamation once revolved mostly around newspapers and printed material, but now, more often than not, it happens on social media sites, forums, message boards and review pages. Defamatory comments can be very damaging to individuals and businesses, and whilst there are clear legal remedies for those affected, it is made all the more complicated when you don’t know who the culprits are. The internet can enable wrongdoers to hide behind pseudonyms, and as social media accounts can be deleted at the click of a button, tracking down those responsible is much harder.
Defamation occurs when an individual or individuals make false statements that are intended to or have the effect of, causing financial loss to the person or organisation affected, or alternatively cause serious damage to the reputation of an individual. If you have been defamed and you want to know who the culprits are, but need a data controller (i.e. the owner of a website or social media site) to give you information, data protection rules can make it difficult for them to do that. The good news is that there is a way of getting the information you require.
Norwich Pharmacal Order
When you want a third party to disclose someone’s identity and address, you can apply to Court for a Norwich Pharmacal order (which relates to the decision in Norwich Pharmacal Co & Others v Customs and Excise Commissioners [1974] AC 133). This is an order which compels a third party (such as a website owner) to give up information that will enable the claimant to identify and pursue the wrongdoer. The third-party from whom you seek the information must be somehow mixed up in what has happened. The best example of this is the owner of a website on which the culprit has posted defamatory messages – such a remedy isn’t available against a mere witness for example.
There are a few caveats on such an order which you need to be aware of.
- The claimant must only use the information he/she seeks for the purpose he/she intends, and cannot do anything else with it unless the Court permits it. Essentially, you cannot take unfair advantage of the holder of the information.
- The claimant has to be prepared to give an undertaking (a promise to the Court) to be liable if any claims are brought successfully against the information holder as a result of the disclosure of personal data.
- The claimant usually has to pay the information holder’s reasonable legal costs.
- Finally, the Court must be convinced that you have a genuine and fairly strong defamation claim – otherwise, the Judge may see the order as disproportionate.
The undertaking you must give to the information holder is there to protect them from litigation they may face. Whilst this can happen, it is unlikely, as the wrongdoer will probably not have much cause to complain. For the Court to make a Norwich Pharmacal order, to begin with, it must be satisfied that the claimant has a compelling case against the eventual defendant. These orders are not handed out on request and the Judges will consider the merit of the application very carefully.
If you are on the receiving end of such an application, the best thing to do is to seek legal advice before committing your position to writing. Whilst legally your costs should be covered by the applicant, if you decide to defend a Norwich Pharmacal order application without just cause and the Court decides that you have acted unreasonably, you could struggle to recover your costs.
How Nelsons can help
Norwich Pharmacal order applications do increase costs for claimants, but if you have had to pursue a third party to bring a defamation claim, you can sometimes recover those costs from the culprit. You must bear in mind though that for defamation claims, a strict limitation period of one year applies and it is difficult to get around this. Acting promptly when you learn of a possible claim is essential.
For any advice or additional information on the subjects discussed in this article, please call a member of our expert Dispute Resolution team on 0800 024 1976 or contact us via the online form.