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Online Wrongdoers Unmasked

AUTHOR(S): Michael Byrne
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution, Defamation and Privacy
DATE: 12.12.2016

The Irish Courts are increasingly ordering social media companies and other online platforms to disclose the identity of online wrongdoers. While this new trend was initially largely confined to seeking the removal of defamatory material, companies are now resorting to the courts to tackle other online wrongdoing which might adversely affect their business.

Social media and the internet offer unprecedented opportunities for anonymous mass communications. This includes not only content posted by “keyboard warriors”, who seek to take advantage of that anonymity by making defamatory comments online but also others who seek to use the internet for unlawful ends. Where this activity is hosted by social media or other online platforms, the host companies can find themselves in an unenviable position. They are unable, from a practical perspective, to monitor the billions of messages published on a daily basis but can become caught in the middle of third party disputes as the only party in a position to trace and identify the wrongdoers who have used their service.

In those circumstances, the Irish Courts have demonstrated a willingness to grant an order requiring the owners or operators of social media and other online platforms to disclose the poster’s identity, allowing the subject of the post to pursue appropriate legal action. These orders are known as Norwich Pharmacal orders, named after the first case in which one was granted, by the English courts in the 1970’s. While initially designed for a lower-tech age (the original Norwich Pharmacal case concerned disclosure of physical documents relating to the importation of chemicals), the use of these orders has evolved with the times. Nowadays, they are most commonly sought in relation to online content and activity.

As we look back on 2016, there has been a noticeable increase in the number of reported applications to the High Court for Norwich Pharmacal orders. Many of these have related to alleged defamatory material posted online. However, a recent application by the German luxury goods manufacturer, Montblanc-Simplo, demonstrates that the modern use of these orders is not confined to cases of defamation.

The first in the recent line of high-profile matters involving Norwich Pharmacal orders arose in late- 2015, when the Irish-based exploration company, Petroceltic, obtained an order against the owner of the blogging site, Wordpress.com, to disclose the identity of an anonymous blogger who had posted defamatory material in relation to Petroceltic and two of its executives. The court also ordered the removal of the content from the site.

Then, in May 2016, Quinn Industrial Holdings Ltd applied to the High Court seeking orders against a social media company to reveal the identity of persons anonymously posting alleged defamatory material on a social media page operated by a group supporting the re-instatement of the Quinn family to control of the company. The social media company in question did not oppose an application for an order requiring it to disclose the IP addresses of those who had allegedly posted the material. Ultimately, the posters agreed to remove the offending content from the page.

In a separate, internationally-reported matter, the President of the African state of Djibouti, Ismael Omar Guelleh, issued proceedings in the High Court in Dublin in relation to what he claimed were offensive posts about him posted on a social media site. He sought orders requiring the social media company to disclose the identities, names, telephone numbers, email accounts, postal address and IP addresses of those associated with the accounts in question. He also sought an order that the offending accounts be closed and the material in question be removed. Mr Guelleh’s proceedings were withdrawn in October 2016 before coming to a full hearing.

The most recent in the line of cases also concerns a social media company but involves the use of a Norwich Pharmacal order in connection with a different type of alleged online wrong. In July 2016, Montblanc-Simplo, the German luxury goods manufacturer, obtained an order from the High Court requiring a social media company to provide the registration details of the companies or people behind a series of advertisements appearing on the social media site which were alleged to promote counterfeit Mont Blanc goods.

If the trend towards increasing use of Norwich Pharmacal orders continues, we can expect to see plenty more of them in 2017, quite possibly in connection with a wider range of online wrongs than we have encountered to date.
 

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