Full case report

Smith v ADVFN Plc (CA)

Reference [2008] EWCA Civ 518
Court Court of Appeal (Civil Division)

Judge May and Moore-Bick LJJ

Date of Judgment 14 Apr 2008


Summary

Defamation – Norwich Pharmacal disclosure – Defamatory material on bulletin board


Facts

S took part in postings on a bulletin board on a financial services website maintained by ADVFN. He claimed to have been defamed by hundreds of postings published by users under cover of pseudonyms. He wished to know their IP addresses in order to obtain their names and addresses from their internet service providers. Gray J had made an order for the disclosure of the registered IP addresses of users responsible for over 100 postings in April 2007, but in most cases that information did not enable S to discover the identities of those responsible. He applied to the judge for disclosure of the IP addresses of the users at the times when their postings were made (an order which was not opposed in principle since disclosure of the identity of the users had already been ordered by Gray J), and for the disclosure of the IP addresses of those responsible for a further 150 postings. He appealed from the decision of Mackay J not to order disclosure in respect of the further 150 postings.


Issue

Whether the judge had wrongly refused to make an order for disclosure of the identities of the users responsible for the further postings.


Held

Dismissing the appeal:
(1) It was unreasonable to expect the judge, in the short time available, to assess without proper guidance each and every alleged instance of defamation, given the volume and incoherence of the material which he had been expected to consider. Accordingly, he had been entitled to refuse to make the order sought.
(2) The Appellant’s inability to pay the Respondent’s costs would be a factor which could properly be taken into account against him if he made a further application.


Comment

This judgment may serve as a corrective to what (if anecdotal evidence is correct) appears to be an increasing tendency for applicants to make very substantial applications for Norwich Pharmacal relief in respect of discussion group and bulletin board material alleged to be defamatory. If (as is often the case) these applications are not opposed, there is a risk that the court may grant the application without proper consideration of whether the material complained of is indeed arguably defamatory, and whether (having regard to such factors as the Data Protection Act, Article 8 rights to maintain anonymity, and Article 10 rights to freedom of expression) it is right for the court in the exercise of its discretion to make the order sought.


Instructing Solicitors

S in person; Field Fisher Waterhouse for ADVFN