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Lifting the Veil of Online Anonymity
Defamers often seek to exploit the anonymity offered by the Internet by making defamatory comments anonymously or under a pseudonym. In order to bring an action against them, a victim of such online defamation will first need to identify the defamer. Although frequently entirely blameless, the owners and operators of the various social networking sites or platforms on which such defamatory comments are posted are caught in the cross-fire as they are uniquely positioned to identify the perpetrator. However, they may be constrained in their ability to do so on the basis of duties of confidentiality owed to their users.
Two recent High Court cases highlight an important and increasingly common procedure where an order can be granted requiring the disclosure by such third parties to a wronged person of the identity of alleged wrongdoers, where there is, at first sight, clear evidence of wrongdoing by those unknown parties. These orders are known as ‘Norwich Pharmacal orders’, taking their name from the English case of Norwich Pharmacal v Excise and Customs and Excise  AC 133 where the principle was first established. Orders of this kind have a particularly useful application in cases of unknown, online defamers, who would otherwise continue to remain unknown.
The first of the two recent High Court cases is Petroceltic International plc & Ors v Aut O Mattic A8C Ireland Limited & Anor (Unreported), which was heard in August 2015. Here, the plaintiffs sought a Norwich Pharmacal order requiring the second defendant to disclose the identity of an anonymous user, who had allegedly posted defamatory statements concerning the plaintiffs on the defendant’s investor blogging website. Judge Baker acceded to the request, instructing the defendants to directly notify the anonymous author to reveal their identity, failing which the defendant would be required to disclose the identity of and related information regarding the anonymous author. As Judge Baker was satisfied that the posted material was, at first appearances, grossly defamatory, she also made an order requiring the defamatory material to be removed from the website and prohibiting the defendants from permitting the anonymous author to post any further comments relating to the plaintiffs on its website.
This case was soon followed in October 2015 by the case of Stephen Walsh v Twitter (Unreported). Here, the Plaintiff had appeared as a whistleblower in an RTÉ Prime Time programme regarding procurement practices in Irish hospitals. Alleging that he was defamed afterwards on Twitter, the plaintiff came to the High Court to seek a Norwich Pharmacal order requiring Twitter to disclose the identity of the anonymous twitter user responsible for the allegedly defamatory messages. Judge Mac Eochaidh granted the order and also made an order barring any person from destroying the electronic devices from which the messages were sent.
These cases serve as a reminder that the courts are adapting to the distinctive challenges posed by the anonymity so readily afforded by the Internet and will, in the right circumstances, assist victims of online defamation in unmasking their online defamers, to include requiring the assistance of the host website or platform where necessary.