Tycon Energy Corp v The Motley Fool Limited
Reference: Unreported, 9 December 2008
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 9 Dec 2008
Summary: Defamation - Libel - Internet postings - Norwich Pharmacal order - Anonymous representations by posters - Costs
Adam Speker QC (Respondent)
Instructing Solicitors: Charles Fussell for the Applicant; Taylor Wessing for the Respondent
C, a US based oil and gas exploration company sought from D, a company which operates a financial discussion board on its website, the identities of a number of posters who posted, C said, defamatory material about the company. D refused to give disclosure in the absence of a court order and adopted a neutral stance at the hearing. It notified the posters about the application and invited them to submit any reasons in writing why their identities should not be disclosed. A number of posters took up the invitation and their submissions were put before the court.
(1) Whether the identities of the posters should be disclosed;
(2) Whether the costs of seeking submissions from posters should be borne by the Applicant
(1) The identities of the posters should be disclosed. A number of the postings were, prima facie, defamatory.
(2) The Applicant should pay the costs of the application including the costs incurred seeking submissions from the posters.
In Totalise plc v Motley Fool & Anor  1 WLR 1233 Aldous LJ considered that there would be occasions on a Norwich Pharmacal application when it would be appropriate to tell the poster what was going on and invite him or her to put forward reasons why their identity should not be disclosed. In practice, the Court is unlikely to be convinced that, if a case is made out, a poster should have his or her identity concealed and hence be given a form of immunity but it may be good practice for a website operator to notify a poster in case there is a good reason.
Here, the Applicant was required to pay the costs of the exercise; some of which it might be able to recover against the poster if it successfully sues him or her for libel.