Careful balancing of rights is necessary before the court grants so-called Norwich Pharmacal relief against an innocent party holding information about a wrongdoing, the senior media judge has ruled. The Honourable Mr Justice Nicklin, head of the High Court media and communications list, was refusing permission for an order to be made to identify likely defendants in libel proceedings.
The claimants in Richard (Raziel) Davidoff & Ors v Google LLC are attempting to identify the authors of reviews which allegedly defame their property management and estate agency business on the Trustpilot review website. The reviews, in 'strikingly similar language' came mainly from Gmail accounts which have been used only for that purpose, the claimants told the court. They sought a Norwich Pharmacal order requiring Gmail's owner Google to identify the authors on the basis that the web giant had 'enabled' the wrongdoing.
Nicklin observed that, for a Norwich Pharmacal order to be made, a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer and an order must be needed to enable action to be brought against the wrongdoer. The person against whom the order is sought must: (a) be mixed up in, so as to have facilitated, the wrongdoing; and (b) be able or likely to be able to provide the information necessary.
An applicant for a Norwich Pharmacal must demonstrate more than simply an arguable case that they had suffered a civil wrong, the judge said. 'S/he must show that a claim that has sufficient weight or substance to outweigh the countervailing rights of the target.' In this case, it required a balancing of the Article 8 (reputational) rights of the claimant against the Article 10 (privacy) rights of the anonymous reviewers.
Dismissing as 'hopelessly weak' the claimants' underlying defamation case, Nicklin said: 'Without evidence of serious harm to reputation/serious financial loss caused by the publication of each review, the defamation causes of action have no real prospect of success. Insofar as the Norwich Pharmacal application is based upon a claim for defamation, the claimants have failed to demonstrate that a wrong has been carried out.'
William Bennett KC, instructed by Patron Law, appeared for the claimants; Google did not appear and was not represented.
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