An effective global remedy
Date: 12 February 2010
Authors: Anna Caddick & Hugh Tomlinson QC
Issue: Vol 160, Issue 7404
Categories: Features, Commercial
Norwich Pharmacal orders are increasingly sought against internet service providers to discover the identity of individuals who use the internet anonymously as a tool to harass or defame. Although service providers do not usually contest the applications, they require court orders before disclosing the private contact details of their customers.
Where the service provider is based in England, or has business premises here, applications are usually straightforward. If the service provider has an anonymous customer who is, for example, sending abusive or threatening e-mails or making defamatory postings, then the court will order the disclosure of their name and contact details. However, the service providers that have access to the necessary information are often based in the US with no relevant English place of business. This applies, for example, to Twitter, Facebook, MySpace, Wikipedia and Google. These companies will usually not oppose orders being made but do not submit to the jurisdiction of the English courts.
A Facebook first
In the past, Norwich Pharmacal orders have often been granted against foreign corporations without any consideration of jurisdiction issues. This happened in the first “Facebook” case—Applause Store Productions & Firsht v Raphael [2008] EWHC 1781, [2008] All ER (D) 321 (Jul). This went to trial after the grant of a successful Norwich Pharmacal order against Facebook, which required the disclosure of the registration details, including the e-mail address(es), and the IP addresses for all computers used by the owner of the e-mail address(es) which had accessed Facebook.
Similarly in the recent case of G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2009] All ER (D) 92 (Dec) an order was made to identify a person responsible for putting private information onto Wikipedia. However, this practice was questioned for the first time by Sir Christopher Holland in the course of an application before him in Lockton Companies International & Others v Persons Unknown and Google Inc [2009] EWHC 3423 (QB).
Jurisdiction: the problem
In Lockton, the claimant was seeking to identify the sender of anonymous defamatory e-mails which also contained confidential information. The IP addresses (the unique numbers on the internet identifying the computer from which the e-mails were sent and which were obtainable from the routing data on each e-mail) resolved solely to Google inc, the company responsible for managing the web mailer service from which the e-mails were sent. There were no technical means of going behind that wall without the assistance of Google. The only option was to obtain the subscriber details and IP login history from Google.
The relevant Google company in the US confirmed that it would provide the information in response to a court order and that it would not oppose the making of an application by Lockton but that it should not be taken to be accepting the jurisdiction of the court. This is typical of the type of response companies such as Google give.
When the application for a Norwich Pharmacal order came before Sir Christopher Holland he questioned whether the court had jurisdiction to make an order against a US company without a place of business in England. The matter was adjourned and heard by Eady J.
Jurisdiction: the solution
An application was made for permission to serve Google out of the jurisdiction in accordance with CPR 6.36 which requires that one of the grounds in para 3.1 of Practice Direction B are met. The claimant argued that para 3.1(3) of the Practice Direction was the relevant part for their purposes, namely that: “A claim is made against a person (the defendant) on whom the claim form has been or will be served (otherwise than in reliance on this para) and—
(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary and proper party to the claim.”
It was argued that, on the facts, there was a clear inference that the anonymous sender of the e-mails was in the jurisdiction and that once he was identified, service would be effected without the need for recourse to para 3.1 of the Practice Direction. It was also argued that Google was a necessary and proper party in order to require it to disclose information necessary for the identification of the first defendant. An apparent obstacle to this argument was the general rule established by Burstall v Beyfus (1884) 26 Ch D 35—that it is vexatious to join a party solely for the purposes of obtaining disclosure. The Burstall principle was applied to decline joinder of a foreign corporation for the purposes of obtaining disclosure in Unilever v Chefaro Proprietaries [1994] FSR 135.
However, the claimant contended that the rule did not apply where what was being asserted was an independent claim for relief under the Norwich Pharmacal principle. The Burstall case had, in fact, been distinguished at first instance in the Norwich Pharmacal case itself and it was suggested that special policy considerations applied in the case of international internet service providers. These service providers deal with customers throughout the world. The location of the offices of such companies is a matter of convenience, the relationship with their customers is conducted automatically and electronically. It would be absurd if the place where they are physically present affected the ability of a wronged person to obtain relief.
The alternative course open was to issue John Doe proceedings in the US against the anonymous author of the e-mails and then to seek disclosure orders against Google. This would be considerably more costly and time consuming and the judge in the US would not be well placed to determine the merits of the substantive action. In contrast, Google would suffer little or no prejudice through the making of the order and indeed had already indicated that it would comply with any disclosure order made.
In a short judgment, Eady J held that the court should exercise its discretion to allow service out of the jurisdiction on the basis of para 3.1(3) of Practice Direction B to Pt 6, and on the facts held further that the court should exercise its jurisdiction in favour of making the Norwich Pharmacal order sought ([2009] EWHC 3423 (QB)).
An effective solution
The Norwich Pharmacal order is a vital tool in combating the abuse of the internet by individuals intent upon hiding behind a veil of anonymity. The jurisdiction problem considered in Lockton was a potentially serious obstacle in the way of relief. The judgment of Eady J provides a solution which enables the courts to grant such orders against foreign internet service providers. In future in such a case it will be necessary to issue an application notice against “Persons Unknown” with the internet service provider as second defendant and to make an application for permission to serve out of the jurisdiction at the same time as the Norwich Pharmacal application.
This approach enables the English court to take jurisdiction and make an order against a foreign service provider. However, it has been indicated in a subsequent unreported decision involving Facebook as the Norwich Pharmacal respondent, that it is not necessary to issue or undertake to issue a claim form against the respondent. This is for the reason that the disclosure provided further to the Norwich Pharmacal order may or may not result in a claim being brought. As a result, a Norwich Pharmacal order will still facilitate the effective tracking down of internet abusers.
Anna Caddick, associate, Olswang LLP & Hugh Tomlinson QC, Matrix Chambers. Hugh Tomlinson QC, instructed by Olswang, acted for the claimant in the Lockton case. E-mails: Anna.Caddick@olswang.com & hughtomlinson@matrixlaw.co.uk
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