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A right to post anonymously?

AUTHORs: Michael Byrne co-author(s): Tom Mullen, Roisin Walsh Services: Commercial Litigation and Dispute Resolution DATE: 26/05/2021

 

High Court of Ireland seeks clarity from European Court regarding the circumstances in which it can order the identities of anonymous online wrongdoers to be revealed.

On 19 May 2021, the High Court of Ireland confirmed that it proposes to make a preliminary reference to the Court of Justice of the European Union (CJEU) seeking clarity on the circumstances in which it can grant what is known as a Norwich Pharmacal Order. Norwich Pharmacal Orders (named after the first case in which such an order was made) have been granted by the courts in Ireland for decades. However, in recent years, there has been a significant increase in the number of orders being sought against social media companies, in particular by parties seeking to unmask anonymous users who have made defamatory comments online. The orders are sought so that legal proceedings can be brought against those users once their identities are known. Applications for Norwich Pharmacal Orders have, to date, tended to be made without notice to the alleged wrongdoer so the alleged wrongdoer is not heard by the court in relation to it.

The High Court makes the preliminary reference in the context of proceedings issued by the Board of Management of Salesian Secondary College, Limerick, against Facebook Ireland Limited (“Facebook”), seeking a disclosure order to compel Facebook to identify the individual(s) behind an Instagram account, “Pallaskenrymemes”. The account, which was active between 14 and 24 October 2019, published a number of “memes” (stock images from the internet with text superimposed) relating to individuals and events at the school, content which the Court described as “coarse and vulgar”. The disclosure order was sought by the school for the purpose of “dealing with” the individual(s) behind the account by way of “disciplinary or pastoral response”. However, the school did not intend to bring any legal proceedings against those behind the account.

The High Court proposes to refer a number of questions to the CJEU, including:

(i) whether there is an implied right under the Charter of Fundamental Rights of the European Union (Charter) to post anonymously on the internet (subject to any countervailing objective of public interest);

(ii) what is the threshold to be met under the GDPR / Charter before a social media platform can be compelled to disclose information about a user and whether it is necessary for a third party seeking disclosure to establish a “strong prima facie case” of tortious wrongdoing and an intention to pursue legal proceedings; and

(iii) whether it is necessary for a national court to attempt to put the anonymous user on notice of an application for a disclosure order.

Mr Justice Garrett Simons noted that the application presented significant legal issues in respect of privacy, data protection and freedom of expression and indicated that there is a strong argument that persons using a social media platform anonymously have an expectation that their identity will not be disclosed without their consent (subject to any countervailing public interest in the disclosure of their identity, for example in the context of defamation proceedings). In addition, the judge noted that the school was inviting the court to depart from the longstanding requirement that an applicant seeking a disclosure order must have an intention to pursue legal proceedings for the alleged tortious wrongdoing. He said that the position advanced by the school would represent a significant departure from the existing case law of the Irish Courts. It was in this context that the decision to make a reference to the CJEU was made.

While the High Court distinguished this case on the basis of its unique features, the questions proposed are relatively broad and, depending on the response from the CJEU, have the potential to alter the landscape more widely in respect of disclosure orders against social media platforms and other Internet Service Providers into the future, particular with regard to a right to post anonymously, the threshold to be met when granting such orders, and notification requirements to users. It remains to be seen whether the High Court will alter its approach to granting disclosure orders while awaiting clarity from Europe.

The proposed questions (to be confirmed following a further hearing on 14 June) are as follows:

(1) Do the rights conferred under Article 7, Article 8 and Article 11 of the Charter of Fundamental Rights of the European Union imply a right, in principle, to post material anonymously on the internet (subject always to any countervailing objective of public interest)? If so, is this right qualified in the case of the students and staff of a secondary school?

(2) What is the threshold to be met under the General Data Protection Regulation and/or the Charter before the provider of a social media platform can be compelled to disclose, to a third party, information which would identify an otherwise anonymous account user? Is it necessary for the third party seeking disclosure to establish a strong prima facie case of tortious wrongdoing and an intention to pursue legal proceedings? Alternatively, does the board of management of a secondary school have a sufficient interest in disciplining its students and staff for their online activities to entitle it to disclosure, even in the absence of an intention to pursue legal proceedings? If so, is it necessary to establish that the online activities are disruptive to the school environment?

(3) Is there any necessity for a national court to attempt to put the affected party on notice of an application which seeks to identify the operators of an otherwise anonymous user account? Should, for example, the national court direct that the social media platform notify the party and inform them that they have an opportunity to make submissions anonymously to the court?