A recent article published in the online e-zine, the Gazette of Law and Journalism, entitled: “Hiding behind anonymity”, on 15 June 2011 discusses approaches being taken by lawyers for aggrieved clients in the UK and Europe who have been targeted by cowardly “mud chuckers” in internet forums and blog sites.
The article reflects and reinforces that the strategies and approaches being implemented by Lavan Legal’s defamation team to root out so-called “anonymous” online users and bloggers for clients who have been grossly disparaged and defamed by them is consistent with those offshore jurisdictions.
When and where appropriate, Lavan Legal has been making applications seeking court orders for pre-action discovery of documents from administrators/operators/owners of websites and online forums which contain information that may lead to ascertaining the identity of internet users who have uploaded offensive content using a false name, an “anonymous” persona or a “stolen” identity.
Setting up internet accounts, “tweeting” and posting items on blogs and online forums typically requires subscribers to provide information and contact details when they sign up to use these online services. Internet users often sign up to these services using fake names or aliases or “stolen” identities with the intention of publishing malicious and grossly offensive statements about others thinking they will never get “caught”.
Indeed, and regrettably, many website platforms apparently actively encourage and effectively invite users to adopt an alias for the purpose of uploading content onto websites or forums so as to mask their true identities.
The reality is that even “anonymous” users leave behind traceable information and electronic “footprints” which often leads to their identification. Although the privacy policies of many online websites prevent the administrators from disclosing information regarding their users directly (eg based on privacy law grounds, or contractual obligations to their members/customers not to voluntarily disclose member/user account details), such information is often susceptible to compulsory production on a pre‑action discovery application in the Supreme Court.
In the UK and Europe, an applicant can apply to a court for orders compelling the discovery of documents from website administrators. Such applications in those jurisdictions are generally referred to as a ‘Norwich Pharmacal’ application, the name derived from the UK decision in the matter of Norwich Pharmacal Co. & Ors v The Customs and Excise Commissioners [1974]AC 133.
In the Norwich Pharmacal case, the Court determined that where an innocent third party had information in its possession relating to unlawful conduct, a court could compel that third party to assist the person suffering damage by compelling the innocent third party (and a “stranger” to the applicant’s underlying complaint) to provide such information to the applicant to assist them prosecute a potential claim against the culpable party.
The principles applied in the Norwich Pharmacal case are largely reflected in Western Australia under the rules of court, namely by Order 26A of the Rules of the Supreme Court 1971, which sets out the rules for an aggrieved party with a potential claim against another party, whose identity cannot be readily ascertained, obtaining pre-action discovery of documents from another person who may hold documents containing information that may lead to the identity of the potential defendant being ascertained.
Lavan’s defamation team has, for some time, been issuing and making use of these pre‑action discovery provisions in the WA rules of court to obtain production of documents containing information that may be relevant in identifying “anonymous” users responsible for uploading defamatory content from the administrators of websites and online discussion.
Recent media coverage has reported the social networking site Twitter as acknowledging that it will disclose information regarding its users when legally required to do so.
Wikipedia also has a policy of releasing electronic data that is sought in response to a valid subpoena or equivalent legal process.
Although the user information obtained via applications for pre‑action discovery from website administrators is, at times, only as helpful as the information that has been provided when the user has subscribed to the service (remembering that users may sign up using a false or fake ‘gmail’ or ‘hotmail’ accounts, or provide a fake name and/or address), users of websites are often not aware of the privacy policies of websites, and conduct themselves under the (mistaken) belief that the content uploaded using a false username can not be traced back to them.
The up-shot appears to be that with website administrators being increasingly willing to disclose user information in accordance with court orders to give pre-action discovery of documents, remaining ‘anonymous’ on the internet is becoming increasingly difficult.
Users who intend to cowardly upload offensive content from what they wrongly believe is a position of anonymity should do so at their own risk, and with the real risk of knowing that their user details and electronic “footprints” can be provided to an aggrieved person upon the issuing of a court order, and that other avenues can in turn be utilised to home in on them and root them out.
For more information please contact partner Nick Stagg on (08) 9288 6971 / nick.stagg@lavanlegal.com.au or associate Kara Thornton on (08) 9288 6987 / kara.thornton@lavanlegal.com.au.
