A recent judgment concerning defamation and malicious falsehood claims raised an interesting question concerning Norwich Pharmacal relief.
The case, Davidoff v Google, concerns unfavourable (and allegedly fake) reviews of estate agents posted on Trustpilot (the Davidoff claimants are not connected with the famous luxury brand).
The claimants had already identified the Gmail addresses associated with the accounts that posted the reviews thanks to a Norwich Pharmacal order obtained against Trustpilot. In this action, they were seeking a further order against Google to identify the actual individuals behind the email addresses.
Norwich Pharmacal requirements
The judge, Mr Justice Nicklin, noted that the basic requirements for a Norwich Pharmacal order are:
a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
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 to enable the ultimate wrongdoer to be pursued.
In this case, he found that two of the claimants had demonstrated a claim for malicious falsehood with a real prospect of success in relation to some of the reviews, sufficient to satisfy him that a wrong had arguably been carried out by at least one wrongdoer. There was therefore a need for the order sought.
The question was whether Google, as the provider of the email addresses, was “mixed up” in the wrongdoing. (Google did not attend the hearing and was not represented.)
Was Google mixed up or not?
The claimants argued that the use of the email addresses “enabled” the authors to post their reviews on Trustpilot. It was also noted that the site also requires users to maintain their email addresses for future contact. But the judge found:
“Whilst it might be argued that the Defendant, by providing a Gmail address, has ‘facilitated’ the relevant individuals signing up for a Trustpilot account, that is not the wrongdoing upon which the Norwich Pharmacal application is based. The alleged wrongdoing is the subsequent use of the Trustpilot account to post the Review. In that second phase, the Defendant, in its provision of a Gmail account, has played no role; it has neither engaged in nor facilitated the alleged wrongdoing; nor has it furthered the posting of the Review.”
In support of this, the judge noted that, once someone has registered for a Trustpilot account, even if the email address is subsequently deactivated, they would still be able to post a review: “Once the Trustpilot account has been registered, the Defendant is, for all practical purposes, not involved in (and is powerless to control) what is posted using it. At the stage when each Review was posted, the Defendant was and is a mere witness to the anterior event of initial registration.”
The judge compared the situation to seeking a Norwich Pharmacal order against a garage that sold a car that was subsequently involved in a collision:
“In a very general sense, by selling the car to the driver, the garage might be said to have ‘facilitated’ the driving that led to the collision, but the sale of the car is not the wrong that is alleged. The garage simply played no role in the subsequent collision. The information it has about the driver, it holds as a witness.”
Moreover, it made no difference whether or not the Gmail account was registered under a false name.
Had the judge concluded that Google was “mixed up” in the arguable wrongdoing, then an order would have been granted– but he didn’t, so it wasn’t.
What does this mean?
Norwich Pharmacal orders are very useful in a variety of cases, including IP cases, where it is necessary to establish an alleged wrongdoer’s identity. However, as this judgment demonstrates, they will only be granted where all the requirements are met.
On the facts of this case, at least, the claimants were not able to use this means to obtain email registration details. It will be interesting to see if the same logic applies in similar cases, including those concerning social media usernames and other identifiers.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com