Where someone infringes your legal rights under the veil of anonymity, the law provides a number of methods of uncovering the guilty party.
Whilst many use the internet as a tool for good, there are those who exploit the anonymity that the internet appears to present in order to take advantage of or harm others. This harm can include a breach of your legal rights, such as defamation or copyright infringement for example.
Not knowing who is responsible can, understandably, put companies and individuals off from pursuing their rights. However, most perpetrators leave behind a fairly accessible footprint in which case the law provides for the means to follow this trail to the guilty party.
Norwich Pharmacal order
A Norwich Pharmacal order (“NPO”) requires the disclosure of documents or information by someone who is either involved or mixed up in the wrongdoing, but who is (generally) unlikely to be a party to the potential proceedings.
For example, if someone anonymously posts defamatory material about you or your company on an online discussion forum, you could apply for a NPO against the operator of that website to disclose the subscription details of the poster. If someone copies your or your company’s intellectual property on its website which provides no contact details, you could apply for a NPO against the domain host of that website to disclose the registration details of the website owner.
A NPO is not restricted to online infringements, but has come to be used in this arena more and more due to the rapid growth of the internet and its online identity culture where users frequently use pseudonyms. NPOs were, in fact, established in 1974, well before the internet became part of mainstream life.
In addition to identifying the wrongdoer, a NPO can also be used to obtain information from the third party to help you plead your case (or even your defence) or trace assets.
You would need to give full and frank disclosure of all material facts and provide a cross-undertaking in damages (i.e. if the third party suffers loss due to the NPO, and it is subsequently held that you were not entitled to the NPO, then you must compensate that third party) and demonstrate that you are good for this undertaking. You would usually be ordered to pay the third party’s costs of the NPO application and providing the disclosure itself.
However, the benefits of a NPO are that you do not need to have an express intention to issue proceedings. You only need to show that there is a good arguable case of the wrongdoing; that the third party is likely to have relevant documents or information, is either involved or mixed up in the wrongdoing, but is unlikely to be a party to the potential proceedings (there has been some relaxation of this latter requirement); and that such an order is necessary in the interests of justice and there are no other Civil Procedure Rules that would be applicable instead.
Those are CPR31.16 (pre-action disclosure) and CPR31.17 (non-party disclosure):
- a Pre-action Disclosure Order (“PDO”) requires the disclosure of documents by someone who is likely to be a party to the proceedings. The documents sought must fall within the scope of standard disclosure (essentially, this means that they would either support or adversely affect your case or another party’s case). There must be a real prospect of the proceedings, and the PDO must be desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or save costs;
- a Non-party Disclosure Order (“NDO”) requires the disclosure of documents by someone who is a party to the proceedings. The documents sought must either support your case or adversely affect another party’s case. The proceedings must already have been issued, and the NDO must be necessary to dispose fairly of those proceedings or save costs. Even where there is a high level of confidentiality applying to those documents, this will not defeat a NDO although it might be a “highly material consideration” as was held by the High Court in the case of Destiny Investments (1993) Ltd and another v TH Holdings Ltd (formerly Tonstate (Hotels) Ltd) and another  EWHC 507 (Ch) in which Rosenblatt successfully obtained a NDO against the global accounting firm, KPMG, for various documents and information pertaining to its clients’ (the Defendants’) audit files.
As you can see, there are higher thresholds for you to meet in terms of the status of the proceedings, the disclosure sought and the overarching aims that the order would serve. Another advantage to a NPO is that you can obtain documents and information, whereas a PDO and a NDO limit disclosure to documents only.
Blaney’s Blarney order
However, if the ultimate aim is to discover the identity of the guilty party who you would issue proceedings against, then involving a third party obviously adds on another layer of costs which you would have to bear upfront. There may even be further parties in the trail that leads to uncovering the guilty party. Furthermore, it can be more difficult and costly to obtain and enforce a NPO if the third party is abroad. In such cases, a Blaney’s Blarney Order (“BBO”) – which we briefly mentioned in our previous article “Tribunal obscures ICO Guidance on Freedom Of Information Requests made via Twitter” – may prove useful.
In the case of Donald Blaney v Person(s) unknown, (1 October 2009, not reported) an order compelling an anonymous tweeter to identify him/herself was permitted to be served directly upon that individual via Twitter.
According to a case note written by his barrister, Mr Blaney, a political blogger, applied for an injunction to restrain an anonymous tweeter from impersonating him. However, there was no known address at which to serve the injunction. Rather than take the usual route of a NPO (which, in this instance, would have been an order against Twitter, and potentially also the Internet Service Provider if the anonymous individual had registered his/her Twitter account with false information), Mr Blaney applied for the injunction to be served via Twitter (that is to say, by a short private message containing a hyperlink to the full order sent to the anonymous individual’s Twitter account).
Mr Justice Lewison (as he then was) held that as there was “a prima facia case in passing off, copyright and moral right infringement, an injunction was suitable in this case. As the proposed defendant could not be identified, it was suitable to issue an Order compelling them to identify themselves. Service via Twitter as an alternative method of service under Civil Procedure Rule 6.27 was well within the meaning of the Civil Procedure Rules.”
The anonymous individual provided his/her name and address for service in compliance with the BBO, meaning Mr Blaney did not have to resort to his back-up plan of a NPO.
There are various legal and procedural requirements involved in obtaining the orders mentioned above. In addition, there are other options for obtaining documents held by third parties such as Bankers’ Trust Orders and Freezing Orders which may be more appropriate. Should you find yourself in need of obtaining information and/or documentation to assist with the pursuit of potential legal proceedings, we recommend that you seek advice from a legal professional qualified in dispute resolution.
This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice in relation to any of the above, please contact Simon Walton on 020 7955 1455 or any member of the Rosenblatt Dispute Resolution Department.