Full case report

Clift v Clarke

Reference [2011] EWHC 1164 (QB)
Court Queen's Bench Division

Judge Sharp J

Date of Judgment 18 Feb 2011


Summary

Libel – Norwich Pharmacal Orders – online comments – Article 8 rights of commentators


Facts

C, acting in person, was the successful claimant in Clift v Slough Borough Council [2010] EWCA Civ 1484. D was the editor of ANL’s website, Mail Online. On C winning her claim against the Council, Mail Online published two articles reporting the outcome of the action, one entitled “I was turned into a pariah for complaining about a yob”, and an earlier version entitled “Woman branded ‘potentially violent’ by council after complaining about damaged flowerbed.”

C complained about two of the 40 comments which were left in the “Comments” section beneath the two articles. In order to bring defamation proceedings against the two commenters she issued a claim form and an application notice asking for a Norwich Pharmacal Order to identify the commenters.

ANL objected to the application, and D wrote to C setting out that (i) ANL’s privacy policies oblige D to respect the privacy of the website user’s information, and that therefore it can’t be disclosed without a court order; (ii) none of the information given by users to ANL is verified by the company; and (iii) D did not consider the postings defamatory, and if they were they were fair comment. C was also asked to pay D’s costs of the application and of complying with any order.

In relation to the court’s exercise of its discretion, D highlighted the weakness of the claim, and the legitimate rights and expectations of all involved. D submitted that the postings complained of did not meet the required threshold of seriousness, and were clearly comments on a matter of public interest


Issue

1

Were the conditions met which must be satisfied before a Norwich Pharmacal order is granted?

2

Should the court have exercised its discretion as to whether or not to order disclosure?


Held

Held, refusing the Claimant’s application

1) D accepted that the three conditions for granting a Norwich Pharmacal Order were satisfied: firstly, a wrong had been carried out, or was believed to have been carried out, by the posters in the Comments section; second, C needed to be able to identify them to bring a libel action; and, third, D was mixed up in the wrong-doing and may have been able to provide the information necessary for the ultimate wrong-doer to be sued.

2) In considering the factors relevant to the exercise of her discretion, the Judge held that it was unrealistic to separate the postings complained of from the favourable and positive descriptions of events found in the articles themselves, and in the other comments. The Judge referred to what Eady J said in Smith v ADVN Plc [2008] EWHC 1797 (QB) about the nature of content posted on a bulletin board. The claims which the application was directed to advancing were themselves weak or marginal, and defences of honest comment would probably have been available in any event.

The rights and expectations of the website users also fell to be considered, as set out by Aldous LJ in  Totalise Plc v The Motley Fool Ltd [2001] EWCA Civ 1897. These were engaged on the facts. These arose from ANL’s Privacy Policy, and the disclosure of the commenters’ personal information engaged their Article 8 right to a private life, and constituted processing for the purpose of the DPA. These matters were a factor relevant to the exercise of the judge’s discretion. To grant the application would have been disproportionate.


Comment

The extent of publishers’ liability for comments posted on their websites is a developing area of the law. This decision demonstrates that the internet context in which such comments are made can play an important part in determining whether a claim can be brought. Firstly, the comments must be seen in context, including that of the article to which they are attached, and of those around them. This is important in a situation in which, typically, one or two commenters will attempt to push the boundaries of what is acceptable. A complainant has the alternative of reporting comments on a moderated site.

Second, the decision shows how the nature of the internet can lend itself to an understanding of particular defamatory publications as being inherently less serious than those found elsewhere. In the bulletin board or comments section context, they may be “pub talk” which is not intended to be taken seriously. Although this is a principle which may undermine the rights of those whose complaints are otherwise serious and well-founded, it is one which recognises the reality of online conversation and debate.


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