A Brighton woman who received death threats and other online abuse on Facebook has won a landmark High Court order forcing the social network to disclose the identities of anonymous internet trolls who targeted her. In the same week Ken Clarke announced government proposals to force internet service providers (ISPs) as part of the Defamation Bill to help identify online abusers without having to go down the litigation route.

What is the background to this case?

It is an issue pervasive throughout the internet communities, irrespective of age, gender or location, that users believe that they are working within a bubble. People seem to believe that writing on the internet is like writing in a diary – only they can read it and the pages are there to be ripped out and destroyed forever. That could not be further from the truth. If any analogy could properly represent internet activity, it seems to me that the newspaper article one is more accurate. But the old adage that “today’s news is tomorrow’s chip paper” would not apply – the article is published every day, forever and is visible to anyone who cares to look hard enough.

With this in mind, it never ceases to surprise me that people take the risks they do online. Media reports of members of the public posting messages of racist abuse or insulting their employer seem to illustrate just how blinkered people are to the reality of an internet posting. Very few would directly tell their employer they hate him and his job, and yet people fairly frequently post such messages online, where they can be easily found.

It is axiomatic that as the proportion of people who use social media increases, so the instances of abuse or defamation online become more frequent. It is unfortunate that the ease with which a victim of such abuse can find justice is far less straightforward.

When can the court order a publisher to reveal someone’s identity?

The power to force a publisher to reveal the identity of an online attacker is well established and relates to a 1974 case in which it was held that if an innocent third party had information relating to unlawful conduct, a court could compel them to assist the person suffering the damage by giving them that information. This is known as a Norwich Pharmacal order.

For this relief to be granted, the victim must demonstrate to the Court that:

  1. A wrong has been committed.
  2. The disclosure of information or documents is needed to enable action against the wrongdoer.
  3. The respondent is not a “mere witness”, but has facilitated the wrongdoing (even if innocently).
  4. It is in the interests of justice that the order is made.

This issue has recently been in the news when a Norwich Pharmacal order was given to Nicola Brookes, who was subject to online abuse on Facebook.

Brookes was, over a fairly lengthy time period, branded a child abuser, a drug dealer, a stalker and a prostitute. She was also ridiculed about her age, appearance and her illness. It may be otiose to explain that the Court was persuaded that a wrong had indeed been committed.

The Court was informed that Brookes intends to privately prosecute those responsible. A private prosecution is an archaic right, by which anyone can bring a prosecution for an offence before the UK courts, subject to certain criteria. In order to bring such a prosecution, Brookes would clearly need to know the identities of her online abusers.

The messages were posted using Facebook as a conduit, one that was not directly involved and which innocently facilitated the offence. It was successfully argued before the Court that it was in the interests of justice for those responsible to be brought to justice. Considering the above issues, Facebook was ordered to reveal the identities of the perpetrators, in order that criminal proceedings could be initiated.

However, given the sheer volume of people using the social media sites, this is unlikely to be the last Norwich Pharmacal order to be made in this situation. Facebook attracts off-the-cuff comments and targeted abuse in this way, as it is just so easy to use. But it is entirely possible that such an order could be made in relation to offensive tweets or even user comments on YouTube about a video a person has posted.

How is disclosure of information by ISPs normally handled?

The normal circumstances are that the person seeking the information would initially approach the ISP, in order to try to obtain the information without the need to have the matter heard by the Court and the subsequent escalation of costs. However, an ISP would find it difficult to release such information due to the constraints of the Data Protection Act 1998. In that situation, an ISP would likely refuse to provide the information, less out of loyalty to the customer base but more because of the consequences. It is therefore likely that, if there was merit in the application, the ISP would consent to the Norwich Pharmacal order, which would then be taken into account by the Court, which would likely grant the application in writing.

An ISP may challenge the making of the order on the basis that the prerequisites are not met or that the order sought would be disproportionate to the injury suffered. However, the dramatic increase in costs related to such issues, which the ISP could potentially be liable for, is a significant factor that would be borne in mind by the ISP.

An important issue is that the standard of proof required for the granting of a Norwich Pharmacal order is unrelated to that for the substantive offence (the “wrong”). The granting of a Norwich Pharmacal order does not really give any indication of whether the person will ultimately be found liable for the wrong itself.

For example, disclosure of the information may be necessary to allow a criminal prosecution for harassment. The burden of proof on the applicant, in order to successfully obtain the Norwich Pharmacal order from the civil court, would be on the balance of probabilities. It would not be for the civil court to pre-judge the criminal matter, so they would not get especially involved in the minutiae of the evidence. If the order were to then be granted, the criminal proceedings are dealt with using the criminal burden of proof – that the prosecution must make the Court (or a jury) sure that the person is guilty of the offence. This used to be explained as “beyond all reasonable doubt”, which puts the high hurdle involved in securing a criminal conviction into perspective. So while a Norwich Pharmacal order may be granted, a criminal conviction is certainly more difficult to obtain.

How does the burden of proof differ in defamation claims?

A person may instead wish to obtain a Norwich Pharmacal order in relation to a defamatory publication. The burden of proof in such a matter is rather different than in a normal civil matter as a defamatory statement is presumed to be false, unless the defendant can prove its truth. In effect, the burden of proof is shifted onto the defendant.

A Norwich Pharmacal order can be granted for all manner of wrongs. In Brookes’ case, she alleged the Facebook posters, labelled as “trolls”, were guilty of harassment against her. This is a criminal offence and she must be confident she can ultimately overcome the higher burden of proof, rather than bring a civil action for the defamatory comments (which appear to be clearly made out).

The Protection from Harassment Act 1997 provides an offence whereby a course of conduct is pursued which:

(a) amounts to harassment of another, and

(b) they know or ought to know that it amounts to harassment of the other.

So people may ask how abusive the online comments have to be. Under the Protection from Harassment Act 1997, they only have to be knowingly harassing that person. The level of abuse is, in many ways, irrelevant.

How common are these types of cases?

This is the second such matter in the media in recent weeks. At the start of June, Frank Zimmerman was convicted of an offence of sending by public communication network an offensive, indecent, obscene, or menacing message to Conservative MP Louise Mensch. He was given a 26-week custodial sentence, suspended for two years and has had his use of the internet restricted.

While resources of the police are already stretched with regard to investigating matters, while they absolutely should not neglect to investigate online matters properly, it is easy to see why online matters are treated as less of a priority. However, I have little doubt that where the abuse becomes threatening or violent, it is even more necessary for the police to become involved. Zimmerman told Mensch to pick which of her three children to save and which were to die. While I would like to think the police became involved because of the viciousness of the trolling, it may have more to do with the recipient of the abuse being a Member of Parliament.

With two high profile online abuse matters reaching Court this month alone, as well as the long list of similar previous matters, this is a subject now in the public consciousness. People are more aware than ever that matters such as this can be brought before the criminal courts and that, if necessary, they can prosecute a matter themselves, albeit assisted by a solicitor.

Is the law keeping pace with technological advances?

I think it is interesting that the law is keeping pace with technology in this area. Compared with the recent burst of widespread social media activity, the laws involved are all much older. It is indicative of the ease with which laws can be drafted to remain somewhat future-proof that the powers due to the Norwich Pharmacal case are 38 years old and are being used to assist a prosecution under the 15-year-old Harassment Act for offences that have been committed on a medium for which most people have only had access for the past six years.

However, the Defamation Bill, currently going through Parliament, seeks to further update the law for that area. This would somewhat remedy the dilemma currently faced by website operators or ISPs who have received a complaint that an article they host may be defamatory. As it stands, they could themselves be found liable for that defamation if they are on notice of its content and have not removed it expeditiously. However, if they remove the article, they risk depriving the freedom of speech of the author. There is clearly a balancing act and website operators and ISPs no doubt find it a difficult issue.

The Defamation Bill seeks to circumvent the need for this decision, by allowing website operators or ISPs to have a defence to a defamation allegation, if they disclose the identity of the person who posted the comments or wrote the article in question. It is also suggested that such disclosures will be made easier and eliminate the necessity for a Norwich Pharmacal order. While the intention of Parliament may have been to allow the website operators to avoid the difficulties currently presented, as well as to reduce a potential bottleneck of aggrieved parties seeking such orders, the unforeseen benefit may be felt by the general public. Once the bill is passed, it seems it will be much easier for a person who has suffered a defamatory wrong, to seek a more cost effective method of obtaining the identity of the perpetrators. The Norwich Pharmacal regime is extremely costly, which no doubt currently acts as a deterrent which will be later avoided.

What avenues are available to victims of online abuse through the criminal courts?

Nevertheless, some matters are more than defamatory and the actions are criminal. We are still faced with the issue of an overworked and under resourced police force, who seem somewhat reluctant to investigate such matters. Brookes contacted the police shortly after the cyber bullying commenced. She was told by the police they would not investigate the matter as they are simply not capable of doing so for every Facebook abuse complaint. Brookes described this response as “stressful and disappointing” and therefore decided that, if she wanted to see the perpetrators brought to justice, she would have to prosecute them privately herself.

It is significant that the victims of online abuse have very little in terms of support and guidance available to them. Clearly, the prosecutions provided for by UK statute should be available for citizens online as well as the physical world, as the effects of such offences are equally as damaging in whatever form. While it is easy to see how “real” or physical offences are allowed to take priority, it is absolutely not justifiable.

It is a worrying position whereby a complainant has to prosecute a matter themselves, due to, at best, apathy on behalf of the state. It is clearly in the public interest that such matters are prosecuted and if these prosecutors are not funded adequately, it is a sad indictment of cost-cutting in an area that will never be a vote-winner. Sadly, the demonstrable erosion of public funding has decimated both aspects of the criminal justice system: not only are UK citizens (both tax payers and voters) almost forced to seriously consider paying privately for a rigorous defence, they are now required to pay to prosecute where they are a victim as well.

Interviewed by Ben Brocherie and originally published in LexisNexis news.