Following yesterday's post, I'm going to drill down to a more detailed level and take a closer look at how UK Courts deal with the issue of obtaining a court order to oblige an intermediary to reveal the identity of its users.
I'm going to look at the recent Sheffield Wednesday case. This case, heard on 2 October this year, concerns the chat forum for Sheffield Wednesday fans, Owlstalk, which is owned and operated by Neil Hargreaves (let's call him the "intermediary").
Sheffield Wednesday and its directors brought an action against the intermediary seeking a court order to force him to reveal the identities of certain members of his site. This type of order is called a "Norwich Pharmacal" order and this case has clarified the position regarding instances in which such orders will be awarded against online intermediaries.
The claimants sought the Norwich Pharmacal order in order to enable them to bring libel proceedings against certain members of Owlstalk. The judge considered the three conditions for granting such an order:
- a wrong must have been arguably carried out;
- the order must be necessary in order to enable the claimant to bring an action against the wrongdoer; and
- the intermediary against whom the order is sought must (a) have facilitated the wrongdoing; and (b) be likely to be able to provide the necessary information about the wrongdoer.
The judge found conditions 2 and 3 were easily answered in the claimants' favour. However, with regard to the first condition, he made the distinction between comments by members that were so trivial or implausible as to be "barely defamatory" (quaintly described as "no more than saloon-bar moanings") and those that were "more serious" and capable of being defamatory. As a result, the order was granted in respect of 5 members, but not for the other 6.
The judge referred to two additional factors he considered in reaching his decision:
- "the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life"; and
- the court must consider "whether the disclosure is warranted having regard to the rights and freedoms of the legitimate interests of the data subject" as detailed in the Data Protection Act 1998.
The judge also emphasised that the granting of such an order is at the judge's discretion in each case and the exercise of this discretion may take into account the strength of the claimant's case, the gravity of the allegations, and whether the intermediary has a confidentiality policy (Owlstalk did not).