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On today's Lawtel:

NIGEL SMITH v ADVFN PLC (2008)

[2008] EWHC 577 (QB)

QBD (Mackay J) 13/3/2008

CIVIL PROCEDURE

DEFAMATION CLAIMS : DISCLOSURE : NORWICH PHARMACAL ORDERS : WEBSITES : DEFAMATORY POSTINGS ON WEBSITE : DISCLOSURE OF DETAILS OF WEBSITE USERS : DATA PROTECTION ACT 1998 : art.10 EUROPEAN CONVENTION ON HUMAN RIGHTS

Where users of a website had posted allegedly defamatory remarks about an individual on its bulletin boards, a Norwich Pharmacal order was granted for the disclosure of the details of those users, but in restrictive terms.

The applicant (S) applied for disclosure of information relating to individuals who had posted defamatory comments about him on a website operated by the defendant (X). The website included bulletin boards which could be accessed by anyone following a simple process of registration. Would-be users were asked for their real name and address which they might or might not give accurately. They were also asked to provide a username and password. On registration, the users' IP address would be captured by X's system. S obtained a Norwich Pharmacal order for disclosure of details relating to the users who had posted the relevant comments. In accordance with that order, X supplied just the registered IP address of each user. S brought the instant application for wider disclosure, seeking the name, address and email address of each user, together with the IP address for the user at the time of each alleged defamatory posting. There were two possible orders for the instant court to make. The first option related to 252 different postings by 64 different users. The second option limited the number of postings to 100, and did not go beyond those users who were the subject of the earlier order.

HELD: The relevant conditions for the making of a Norwich Pharmacal order had been met, Mitsui & Co Ltd v Nexen Petroleum UK Ltd (2005) EWHC 625 (Ch), (2005) 3 All ER 511 applied. As to the instant court's discretion as to whether an order should be made and, if so in what form, the Data Protection Act 1998 was engaged and covered the material. X could not merely disclose it without a court order both because of the data subjects' statutory rights and because, as individuals, they had a contractual expectation of anonymity. Care had to be taken because those people were not represented. They had rights of freedom of speech under the European Convention on Human Rights 1950 art.10 and the order in the instant case was one which would conflict with those rights. Even though mechanically it was no more onerous for X to provide details of 252 as opposed to 100 postings, S had cast his net too wide for an order of that nature. He had asked the court to look at the various postings, isolate the ones which were not covered by any existing relief, examine them and find that he was entitled to an order in their respect. The instant court could not exercise its discretion in that way. The right resolution of the issue was therefore the second option limiting the number of postings to 100 and not going beyond those users who were the subject of the earlier order.

Application granted

Posted By: Old Git, May 9, 08:50:43