The Internet, and in particular social media, has provided a base for people to put trolling, defaming and harmful content online anonymously with little repercussions. Aside from the effects these comments
can have on people personally, it can be particularly harmful from a commercial aspect when targeted at businesses. Two recent High Court cases highlight the importance of a Norwich Pharmacal Order in identifying wrongdoers where commercial interests are at risk.
What is a Norwich Pharmacal Order?
A Norwich Pharmacal Order, or a third party disclosure order, is a tool that can be used by a plaintiff against a third party (Facebook and Twitter in the below cases) who may be able to identify a party committing a wrong who would otherwise remain anonymous. This information is usually sought to facilitate court proceedings against the anonymous wrongdoer.
Lisa McGowan v Facebook
This week social media influencer, Lisa McGowan secured High Court orders against Facebook in order to identify anonymous people who she claims are trolling, defaming and stalking her online. Ms McGowan runs the “Lisa’s Lust List” website which specialises in promoting various products including fashion items, beauty, health, travel and homeware items. Ms McGowan alleges that she, and members of her family, have been subjected to online bullying, trolling and harassment. Ms McGowan further alleges that the comments were made to inflict reputational and financial damage on her and her company
Facebook took a neutral position in the case and the disclosure order was granted. Facebook will now have to provide the details of account holders, to include the account users’ identities, names, postal addresses, telephone numbers, email addresses, IP addresses and ISP.
Parcel Connect (trading as Fastway couriers) v Twitter
In June 2020, Parcel Connect (trading as Fastway couriers) issued proceedings against Twitter concerning a parody account created by an anonymous party using the Fastway logo and, for a period of time, the twitter handle @fastwayIRE.
Following a request to Twitter to remove the account, the account was suspended for a few days but then restored, as it did not breach the Twitter terms of use. Thereafter, in April 2020, Fastway issued proceedings seeking a Norwich Pharmacal Order to identify the wrongdoer. The account was subsequently removed by the account holder.
While the High Court judge (Allen J.) was not entirely satisfied that a customer would consider the parody account as genuine, based on the content, he was persuaded that the tweets meant that the Plaintiff company are “incompetent and inefficient and wrongfully and maliciously hold the Plaintiffs up to ridicule”. Further, a strong prima facie case had been made out that the goodwill in the name and mark of Fastway has been damaged by its use on the account and by its association with the comments posted using the username associated with the account.
Conclusion
The above cases reiterate the court’s view that online trolls cannot hide behind anonymous accounts if they have defamed or harassed someone online. While the outcome of the cases against the wrongdoers are unknown at this stage, the disclosure of the information to Ms McGowan and Fastway will now allow both parties to pursue the wrongdoers through the courts directly, should they wish to do so.
If you would like advice in respect of the above information or have any queries in relation to defamation claims, please do not hesitate to contact us at Info@tomcollins.ie or get in touch with Mark Collins directly at Mark@tomcollins.ie.