Categories
Defamation Defamation Litigation

The Norwich Pharmacal Order-an Important Weapon Against Online Trolls

Have you ever been abused online? Repeatedly abuses by an online troll? At some point you may have to consider getting a Norwich Pharmacal Order.

A Norwich Pharmacal order is an equitable relief that a Court can grant to force the respondent-for example a social media website platform-to disclose certain information to the applicant. It has grown in popularity and frequency with the growth of the internet and social media platforms.

As you know many users of these platforms use fake or pseudonymous names which gives them protection to wage campaigns of abuse on their targets. You will see the widespread use of such names on Twitter and YouTube, to name but two social media sites, but Instagram and Facebook also have their fair share.

I recently wrote about such a case in the case involving Twitter and Fastway Couriers in which the High Court granted a Norwich Pharmacal order to Fastway Couriers to uncover the identity of the person operating an abusive parody account against Fastway Couriers.

The Norwich Pharmacal is generally sought against an innocent intermediary-the social media company-in order to reveal the identity of the troll who has been engaging in abusive or hate filled posts and activity.

The order will be granted when the court finds it necessary and in the interests of justice. However, there is no legislation or court rules which provides for such an order.

The origin of the order arises from the case of Norwich Pharmacal v Customs and Excise Commissioners. Norwich Pharmacal believed their patent was being abused by other traders who were importers in the UK. They wished to find the names of the importers who were infringing their intellectual copyright and sought the identities from Customs and Excise in the UK.

The Court held that an innocent party is obliged to reveal the names if they have helped the wrongdoer, even if the assistance was unintentional and inadvertent.

Norwich Pharmacal order test

The test to be applied by the High Court in Ireland will involve looking at these factors:

  1. Has a wrong been committed-is there a reasonable basis for this finding?
  2. Is the disclosure of information necessary to allow the applicant take action against the wrongdoer?
  3. Is the innocent third party able to provide the necessary information or documents?
  4. Is the order necessary in the interests of justice?

Conclusion

An application to the High Court will be necessary to obtain a Norwich Pharmacal order. Hopefully you will never have to make such an application.

Categories
Business and Company Law

Liquidator Refused Access by High Court to Company’s Gmail Account

The liquidator of a Dublin company, with debts of over €600,000, has been refused access by the High Court to the Gmail account of the company.

The company had one director and shareholder, Mr Jawad Khan, who told the liquidator that all the business of the company was conducted through this free Gmail account. He gave log in details to the liquidator but the liquidator was unable to gain access.

The liquidator also discovered at some point that UK authorities were investigating the use of criminal property to purchase vehicles for the company.

The liquidator contacted Google and told Google that he believed the account had been used for fraudulent activity and there may have been an attempt to conceal evidence through this account. He wanted Google to give him full access to the account.

Google refused on the grounds of its obligations to afford privacy rights to its users. Google also asserted the liquidator had failed to provide any or sufficient evidence that the company records or books were contained in the Gmail account. It told the liquidator it should seek a Norwich Pharmacal Order from the High Court which would direct Google to provide the subscriber information associated with the account.

High Court

The High Court pointed out that the High Court could only use its discretionary powers against a contributor, trustee, receiver, banker, agent, or officer of the company in question. in order to succeed the High Court said that Google would have to be found in one of these groups.

The High Court also held that there was no implied right to force the Court to order Google give access to the account. Moreover, even if there was such a right the High Court held that the liquidator had failed to put forward evidence that the Gmail account contained books or records of the company.

That is, the liquidator had failed to adduce evidence that the company had an intellectual property right in any of the content of the Gmail account in question.

Takeaways

  1. Would an application for a Norwich Pharmacal order have succeeded?
  2. The barriers facing liquidators appear to be significant if company information and affairs are to be found in personal email accounts of directors or officers of the company
  3. Google takes privacy and data protection seriously

Read the full decision here SJK Wholesale Limited (In Liquidation) v Companies Act 2014 [2020] IEHC 196.