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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Clift v Clarke [2011] EWHC 1164 (QB) (18 February 2011) URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/1164.html Cite as: [2011] EWHC 1164 (QB) |
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QUEEN'S BENCH DIVISION
Strand London WC2A 2LL |
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B e f o r e :
____________________
JANE CLIFT |
Claimant/Applicant |
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- and - |
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MARTIN CLARKE |
Defendant/Respondent |
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101 Finsbury Pavement London EC2A 1ER
Tel No: 020 7421 6131 Fax No: 020 7421 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
MS S PALIN (instructed by Associated News Ltd) appeared on behalf of the Defendant
____________________
Crown Copyright ©
MRS JUSTICE SHARP:
Background facts
(1) "My, I didn't realise the cost of flowers nowadays. This woman would have been better finding another way to enrich her existence... thereby saving lots of public money."
This comment was posted by "Bob" of "Windsor, England" on 25 June 2009 at 12.39, that is a matter of hours after the article which it related to was published.
(2) "I am surprised to see how many people on here seem to think it is OK for members of the public to issue death threats against council employees. With attitudes like that is easy (sic) to see why so many doctors, nurses and socilal (sic) workers are physically and verbally abused each year."
This comment was posted by "Chris Jones" of "Leeds" on 26 June 2009 at 12.34.
The Law: Norwich Pharmacal Jurisdiction
"The first requirement of the Norwich Pharmacal jurisdiction is that a wrong must have been carried out or believed to be carried out." (Emphasis added)
(i) The strength of the claimant's prima facie case against the wrong-doer; (ii) the gravity of the allegations;
(iii) whether the wrong-doer was waging a concerted campaign against the claimant;
(iv) the size and extent of any potential readership; (v) the fact that the wrong-doer was hiding behind anonymity which the website allowed; (vi) whether the claimant had any other practical means of identifying the wrong-doer; and (vii) whether the defendant had a policy of confidentiality for users of the website.
(i) Where website users have a reasonable expectation that their personal information will not be disclosed, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, as encompassed by Article 8 of ECHR, especially when that individual is not before the court.
(ii) Disclosure of information pertaining to the identity of third parties also engages their rights under the Data Protection Act 1998 (the DPA). In accordance with Schedule 2 of the DPA no order for disclosure of a person's identity should be made under the Norwich Pharmacal jurisdiction unless the court has considered the rights, freedoms and legitimate interests of that data subject, and whether having regard to those rights, the disclosure is warranted.
(iii) It is perfectly legitimate for a party which hosts postings provided by readers, and which reasonably agrees to keep those readers' details confidential and private, to refuse to voluntarily hand over such information. It is not the role of the party which holds the confidential information to determine whether to hand over that information to third parties. For example, a court may decide to refuse disclosure of the identity of a data subject where a publication, though technically defamatory, was visibly the product of a deranged mind or was so obviously designed merely to insult as not to carry a realistic risk of doing the claimant any quantifiable harm.
(iv) Where a party has genuine doubts as to whether the claimant is entitled to the information sought and is under a legal obligation not to reveal the information (or where the legal position is unclear) or where the disclosure would or might infringe the legitimate interests of another, it is perfectly entitled to ask that the court rule on the appropriateness of the relief sought. The defendant's costs in that application should be paid by the claimant, together with the defendant's costs of complying with the order.
Information held by ANL
"If, as you state, the only additional information you currently hold is an unverified email address for each poster, then disclosure of same would assist. It is apparent that you also hold the contact details for the company that provided online marketing services to Mail Online at the time of the postings and disclosure of same may also assist. Whether or not such information would be sufficient in itself to enable me to identify the posters of the words complained of is not a matter that is incumbent on yourselves. If, as you state, you do not hold data pertaining to the respective IP addresses from which these postings were made, then this information is not known to you and inherently I accept that you will not be able to disclose it."
The Defendant's privacy policy
"Rule 1. We welcome your opinions. We want our readers to see and understand different points of view. Try to contribute to the thread, rather than just stating if you agree or disagree. Unless you have a witty one-liner, please explain why you hold your opinion.
Rule 2. This is a public forum. Once your comment is online, everyone with internet access can read it. Please make your comment clear to ensure that it is not misunderstood. Your comment may be rated by other users and categorised, e.g. best and worst rated. You can express a strong opinion but please do not go over the top. Do not forget that you are legally responsible for what you submit. Please consider how your comment could be received by others. Many different types of people of different ages may view your comment.
Rule 5. No libel or other abuse. You must not make or encourage comments which are: defamatory, false or misleading; insulting, threatening or abuse; obscene or of a sexual nature; offensive, racist, sexist, homophobic or discriminatory against any religions or other groups."
"We collect personal information from you (such as name, address, telephone number, email address et cetera) when you complete registration or enquiry forms, submit comments to the site, participate in message boards, blogs and other such user-generated content facilities or send emails to us. Please do not submit your personal information to us if you do not wish us to collect it ... The information collected by cookies and web beacons is not personally identifiable, it includes general information about your computer settings, your connection to the internet, e.g. operating system and platform, IP address, your browsing patterns and timings of browsing on the site and geographical location ... By using the site you agree that we may disclose your personal information to any company within the Daily Mail and General Trust Plc group of companies.
Subject to obtaining your consent, we may also supply personal information about you to third parties.
We reserve the right to disclose your personal information to comply with applicable laws (such as the Data Protection Act 1998) and government or regulatory bodies' lawful requests for information."
Application of the legal principles to facts
"Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence."
"In their natural and ordinary meaning and in context the words meant and were understood to mean that I was a person who had frivolously caused vast amounts of public money to be wasted in the pursuit of my case. The words complained of are not true and are defamatory of me as I have never caused any public money to be spent in pursuit of the matter referred to, or in any other matter."
Conclusions