Faced with libellous attack from within the shadows, it has long been possible for a Claimant in England to apply to the Court for an order compelling the disclosure of information by a social media platform that might assist in identifying an anonymous defamer – such as IP address or name, if known. Referred to as a “Norwich Pharmacal” application, a platform such as Facebook will typically neither consent to nor resist the application, but will abide by a Court order to provide identifying information.

This referral to the European Court of Justice by the High Court in Ireland provides a fascinating insight into judicial thinking on the subject, posing the questions (amongst others) as to whether, in the light of data protection, privacy and freedom of expression laws, there is a right to post anonymously, a legitimate right to maintain that anonymity and, if so, the threshold level that must be reached before that cloak of anonymity is lifted. 

An English applicant for a Norwich Pharmacal order will be expected to demonstrate, amongst other things, a good arguable case of wrongdoing (in this context, defamation) and that the information sought is needed to enable it to take legal action against the wrongdoer.  

There do appear to have been potentially differentiating factors for Mr Justice Simons to grapple with in this case, thus explaining the referral: the offending material was described as “coarse and vulgar” as opposed to defamatory; and there appears to have been no stated intention to bring legal proceedings against the perpetrator(s) (instead the applicant school is said to have been considering some form of disciplinary or pastoral action).  A key question will be whether those factors are pre-requisites before the cloak will be lifted or whether, absent those (and other) factors, a “right” to anonymity will prevail.

The referral will be of interest to those dealing with or facing online libel; the hope has to be for an outcome that does not have the consequence, whether intended or unintended, of facilitating wrongdoing online or eroding the ability of libel Claimants to seek redress against their anonymous tormentors.