In these febrile times it is all too easy to perpetrate entirely false defamatory statements anonymously, on third party websites and get away with it after DAVIDOFF & OTHERS V GOOGLE LLC.
WHAT HAPPENED?
Anonymous and allegedly defamatory posts were placed on Trustpilot against the Davidoff family and two of their companies.
CAN YOU MAKE THE THIRD PARTY DISCLOSE THE EMAIL OF THE PERPETRATOR?
Yes through something called the NORWICH PHARMACAL ORDER which you ask the Court to make.
The Davidoff’s applied for such an Order against Trustpilot and were successful.
SCORE 1 FOR THE ALLEGED VICTIM
DID IT HELP?
No because the email address had been set up with Google using falsified information intended to hide the perpetrators identity.
So the Davidoff’s tried again this time against Google.
DID THAT HELP?
No because the Court ruled against the Davidoff’s’.
SCORE 1 FOR ANONYMOUS KEYBOARD WARRIORS
WHY WAS THAT THEN?
In order to succeed three things must occur:
1 A wrong must be carried out by a wrongdoer;
2 There must be a need/reason for an Order to be an action to be brought against the wrongdoer; and
3 The person against who the Order is sought (in this case Google) must (to quote Nicklin J) be “mixed up in, so to have facilitated the wrongdoing” or be able to provide the necessary information in order for the wrongdoer to be pursued.
In this case although Google allowed the false accounts to be set up this wasn’t the “wrong” that the Davidoffs’ were complaining about. Google had no role or control over what was published.
WHY IS THIS COMPARED TO A ROAD TRAFFIC ACCIDENT?
Nicklin J gave the analogy of a road traffic collision. The victim could not bring an action against the car dealership that provided the car driven by the wrongdoer. It had no role in the collision.
SCORE 2 FOR ANONYMOUS KEYBOARD WARRIORS AND GAME OVER
WHAT DOES THIS MEAN?
Many businesses may be exposed to defamatory or libellous comments on third party review platforms like Trustpilot or TripAdvisor, without any recourse to a claim due to the anonymous nature of the review.
POINTS TO NOTE
1 Had the review been on Google’s own platform it would not have been a mere bystander and it may not have escaped the Norwich Pharmacal Order.
2 Just because a third party has knowledge of the identity of the wrongdoer they may not be Ordered to disclose unless they are somehow mixed up in the wrongdoing.
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