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    Tuesday, 23 October 2007

    Now you see me...: court orders disclosure of Internet posters' identities

    The last few weeks have seen the culmination of a number of interesting libel actions. Last week, a number of cases focused on defamatory statements by anonymous posters on internet chatrooms (1). The cases are an interesting set as they range across scenarios in which first the host was identifiable and implicated in the errant behaviour, in which the host was identifable but not implicated, and in which the host was difficult to identify (and turned out also to be responsible for the posting).

    Two of these cases involved criticism and insult by fans of Sheffield Wednesday of the club's executive and its chairman in particular. The first saw the BBC being obliged by the High Court to hand over the names of two posters. It had taken a neutral stance on the actions, but had withdrawn the impugned postings when notified by the complainants of the questionable legality of the messages.

    The second case concerned a club fan-site, Owlstalk (Sheffield Wednesday Football Club Ltd & Ors v Hargreaves (2007) EWHC 2375 (QB) - available on Casetrack and BAILII). The names of 14 posters were sought, although the judge Richard Parkes QC allowed only 5. He considered it necessary to distinguish between statements which "though legally defamatory, were so obviously designed merely to insult as not to carry a realistic risk of doing the claimant quantifiable harm" (para 12), and other more serious defamation. That is, actions must respond to statements that involve "more than a trivial attack which would not be taken seriously".

    While it seems that the BBC has avoided any potential liability on account of its neutrality and compliance, Hargreaves may face further action himself as a publisher, as it is alleged that he "permitted some users to pursue a sustained campaign of vilification... in the course of which [they] posted false and defamatory messages on the website... therefore [he] has facilitated and become mixed up in the wrongdoing of these users" (para3).

    The actions were taken in under the Norwich Pharmacal precedent. As explained by Media Lawyer (subs.), this allows litigants to seek disclosures if they can demonstrate to the court that an arguable wrong has been committed, that they need the information to protect their position, and that the party being asked to supply the information is involved in the matter, even if only innocently.

    The final, quite bizarre, case involved a website hosted in the US (dadsplace.co.uk), on which a series of defamatory messages - alleging, inter alia, drug-dealing, paedophilia, sexual assault, infidelity and corruption - were posted regarding a Sunderland housing organisation and its employees (Gentoo) (1,2,3). Some of these accusations were then repeated in leaflets published in the North-East. The action ended prematurely after a rival businessman admitted in court last week that he had been behind the website and the messages. The complainants' solicitors had spent £300k on tracing the source of the postings. The action had been brought on the basis of the Protection from Harassment Act 1997 and the Data Protection Act 1998.

    3 comments:

    Andrew Scott said...

    Media Lawyer (subs) is reporting that the injured parties in the Gentoo case have made calls for the establishment of an Internet Ombudsman to protect people from attacks on their reputations mounted through the Internet. The primary basis for this demand is the affordability problem with libel action: "ordinary people do not have the funds to engage in High Court legal battles so there must be a new Ombudsman to champion the protection of people's reputations online". Quite how such an institution could be established / empowered / operate / alleviate the problem is anybody's guess.

    Andrew Scott said...

    Swan Turton have a note on the Sheffield Wednesday case written by Tracy McManus - see:

    BLOGGERS BEWARE: SHEFFIELD WEDNESDAY FOOTBALL CLUB AND OTHERS v HARGREAVES

    She highlights the misplaced "expectation of invulnerability" under which bloggers sometimes act, and the interesting point in the judge's ruling to the effect that only more serious defamation will warrant removal of the cloak of anonymity often adopted by bloggers. She also notes the horns of the dilemma facing hosts who may be faced with demands for disclosure on one hand and data protection restrictions on the other.

    Andrew Scott said...

    There's also a piece in today's Guardian reviewing the action and its ramifications - see:

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