Difficulty identifying anonymous online publishers of information is a common problem in today’s world. It is sometimes solved with the help of a legal relief established many years ago prior to the widespread use of the internet.
A “Norwich Pharmacal Order” is an equitable relief which allows the Applicant to seek a Court Order against an innocent third party, ordering the disclosure of documents and information which will assist the Applicant in bringing legal proceedings against the wrongdoer.
The origin of the Order arises from the case of Norwich Pharmacal Co. & Others v Customs and Excise Commissioners. In this case, the Plaintiff believed that its patent was being abused by other traders who were importing goods into UK. The Plaintiff sought the identities of those traders from Customs and Excise in the UK, to identify those who were infringing their intellectual property rights.
When considering an application for the relief under a Norwich Pharmocol Order, the Courts will consider the following factors:
- Has a wrong been committed?
- Is the disclosure of information necessary to allow the Applicant to take action against the wrongdoer?
- Is the innocent third party able to provide the necessary information or documents?
- Is the order necessary in the interests of justice?
While it was unforeseeable at the time this Order was first granted, it is still relevant given the development of on-line activity and anonymous on-line activity within social media sites. It was brought to the Irish public’s attention last year when a social media influencer Lisa McGowan brought a High Court action against Facebook. She claimed that she and her business were subject to online harassment and defamatory comments made by unidentifiable users.
The Court granted a Norwich Pharmacal Order compelling Facebook Ireland to disclose details of the account holders who had made the controversial posts, to Ms Mc Gowan. This in turn allows her to now bring a legal action against those users for Defamation.
The relief was also sought in a recent case of Williams v Coinbase Europe Limited which concerned an unusual subject for Irish Courts, bitcoin. This case concerned an American national who purchased a large amount of cryptocurrency which he transferred to his blockchain account. However, it disappeared soon afterwards. The Plaintiff engaged a tracing firm who traced his lost bitcoin to an Irish based Defendant, however it was still unclear who held the account.
The Defendant could not disclose the identity of the account holder due to GDPR. The Plaintiff sought a Norwich Pharmacal Order and was successful in the High Court. The Defendant was ordered to hand over all the information in its possession within five days, including the IP address, email addresses, telephone numbers, names, and log in information of the account holder.
Although the Irish Courts are willing to grant this type of Order where there is a strong case of prima facie wrongdoing, it is not without its issues and will not be granted as part of a fishing expedition. The applicant must establish that the information they are seeking will be used to initiate legal proceedings against the alleged wrongdoer and every application must be made in the High Court, with resultant cost implications.
It can sometimes transpire that the information held by the third party (for example an online platform host) does not actually solve the problem for the aggrieved party as the platform holder will not always hold enough detail to establish the identity of the user.
It is understandable that an advantage of an online platforms is that they award anonymity to its users, however there is no such thing as an absolute legal right to anonymity and this issue needs to be addressed through regulation.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email firstname.lastname@example.org.