In the recent judgment of Collier, Riley and Oberman v Bennett, the English High Court granted an application for a Norwich Pharmacal Order, a powerful tool which requires that a third party who can identify a wrongdoer, does so. In this case, the identification was of the individuals associated with a Twitter account said to be libelling and harassing three high-profile critics of anti-Semitism in the Labour Party.

Social media and the internet have made people braver in putting harmful, harassing and/or defamatory content online; they feel safe in the anonymity of the medium. Traditionally, social media platforms and other third parties have been reluctant to divulge the details of account users (even when publishing harmful content) without the presence of a court order.

 

Background

This is what transpired in a recent case before the English High Court. Collier, Riley, and Oberman v Bennett involved a Twitter account with the handle @arrytuttle. The identity of “Harry Tuttle” is unknown. The defendant, David Bennett, has admitted to having responsibility for the account but stated that others have also been involved since 2013.

The now-deleted account frequently published tweets in support of Jeremy Corbyn and took exception to Jewish people who raised the issue of anti-Semitism in the Labour Party. The claimants, blogger and campaigner David Collier, TV presenter Rachel Riley and actress Tracy Ann Oberman, have been critical of the Labour Party and vocal on the issue of anti-Semitism generally. The @arrytuttle account regularly “trolled” the claimants on this issue, with tweets that they say amounted to libel and harassment.

Mr Justice Saini said the Harry Tuttle account had been used “as a medium to attack a number of Jewish people, by harassing and defaming them”.

The defendant admitted responsibility for the @arrytuttle account and any “legal liability” but refused to admit whether he wrote the allegedly defamatory tweets. This led to the claimants’ application for a Norwich Pharmacal Order.

 

What is Norwich Pharmacal Order?

A Norwich Pharmacal Order is a tool that can be used by a claimant against a third party who may be able to identify a guilty party who would otherwise remain anonymous. The claimants sought such an order (a) to identify anyone other than Mr Bennett who may have been associated with the Harry Tuttle account, and (b) to obtain the production of tweets that had been deleted but of which they did not have screenshots.

The judge broke down the elements to be established for such an order to be made as follows:

  1. The applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person;
  2. The respondent to the application must be mixed up in, so as to have facilitated, the wrongdoing;
  3. The respondent to the application must be able, or likely to be able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued; and
  4. Requiring disclosure from the respondent is an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction.

The judge found that Mr Collier’s and Ms Riley’s claims met these tests as the identified statements, if made, were “arguably defamatory and I can infer a sufficiently arguable case on serious harm”. However, Ms Oberman’s did not, due to “the sparse evidential details given of the publication”.

Mr Justice Saini also pointed out that the defendant, having accepted legal liability for the twitter account, was not the point in this case. He said that “the claimants are entitled to sue all wrongdoers” and that “disclosure of the identity of the author of the tweets is plainly necessary if one is to sue that person”.

The judge was equally dismissive of the submission that the claimants’ application was a “continuation of politics by other means”, rather than a genuine attempt to protect legal rights. The answer to that, said the judge, is “so what?” He continued: “The civil law is not concerned with why victims of wrongs seek relief from the courts. The sole issue is whether they have a sound legal claim.”

The judge ordered Mr Bennett to:

  1. Specify the individuals who had access to the account and who tweeted from it; and
  2. To disclose who had posted the statements about Ms Riley and Mr Collier, the substance of the tweets and the metadata and analytics.

 

Conclusion

The result may have been different if the defendant could have shown that he owed a duty of confidentiality to “Harry Tuttle” or if there was sufficient public interest in keeping the identity of the people behind the account confidential.

This judgment shows that online trolls cannot hide behind their anonymity if they have defamed or harassed someone online. While Mr Collier and Ms Riley were successful in their applications, the judgment also confirms the threshold that needs to be met to establish a case for defamation in the English High Court and apply successfully for a Norwich Pharmacal Order.

 

This article was written by our paralegal Palomi Kotecha

 

 


 

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