G & G v Wikimedia Foundation Inc
Reference:  EWHC 3148 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 2 Dec 2009
Summary: Privacy – Confidence – Disclosure – Norwich Pharmacal Orders – Anonymity – Hearing in private - Restricting access to court file – Open justice - rr.5.4C(4), 39.2(1), 39.2(3), Civil Procedure Rules 1998
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Instructing Solicitors: Pinsent Masons LLP for the Applicants; the Respondent was unrepresented and did not appear
The applicant (G) sought a Norwich Pharmacal order requiring the respondent (W) to disclose the IP address of a registered user of W’s website who had amended an online article to insert into it private and sensitive information about G and her child. G believed that she was the victim of a blackmail attempt. Further applications were made to have the application heard in private and to restrict access to the court file. W indicated that it would not disclose the IP address without a court order, but that it would obey such an order even though it was outside an English court’s jurisdiction. It had since removed the disputed amendment to the Wikipedia article.
Whether to grant the orders sought by G
The Norwich Pharmacal order was granted. The hearing of the application should be in private and G should be anonymous. W was refused anonymity as it had not indicated that this was necessary and there was no reason for making such an order. In respect of the approach to procedural issues in privacy cases and injunction applications, hearings in private under r.39.2(3) and orders restricting public access to the court file under r.5.4C(4) are derogations from the principle of open justice which should only be ordered when it is necessary and proportionate to do so. Counsel who apply for such orders should address this issue in their evidence or skeleton arguments, ensuring that the orders sought are limited in scope to what is required in the particular circumstances of the case.
In addition to stressing the importance of adapting any proposed restriction on open justice to no more than what is necessary and proportionate in the circumstances of the case, the judge addressed the need for advocates to draw to the court’s attention any proposed departure from the Practice Direction in relation to return dates and the expiry of injunctions. “If orders are drafted too widely, or made to apply for too long a period, the public’s confidence in the administration of justice may be undermined. It is in the public interest that it should be known what orders the court makes, and why.” He added that any order for an injunction should also normally include an undertaking by the applicant to provide a full note of the hearing “with all expedition” to anyone who would be affected by the relief sought.