Identifying wrongdoers – Is there a third, even better alternative?

Article by 5RB’s Chris Zabilowicz

The question of how best to identify anonymous online wrongdoers has become increasingly pressing for media and privacy practitioners. Traditionally, claimants have relied on Norwich Pharmacal Orders (“NPOs”) to obtain identifying information from third parties, such as social media platforms. More recently, a “better alternative” to NPOs has been proposed, in the form of a third party disclosure order under CPR 31.17

But what if there was a third, even better alternative?

That alternative may lie not in the Civil Procedure Rules at all, but across the Atlantic – in 28 U.S. Code § 1782 (“Section 1782”). This U.S. federal statute allows a party involved in foreign proceedings, or contemplating commencing them, to apply to a U.S. federal district court for an order compelling disclosure from a person or entity located within that district. The material obtained can then be used in the foreign proceedings, including those in England and Wales.

The statute has existed for decades, but its utility in the media law context is only now being fully appreciated. Unlike NPOs and orders under CPR 31.17 – which generally require an application in the English courts and permission to serve out of the jurisdiction – Section 1782 provides a direct route to obtain evidence from U.S.-based entities such as social media platforms, hosting providers, and search engines, over which the English courts have no jurisdictional reach.

What is Section 1782?

Section 1782 empowers U.S. federal district courts to order discovery – that is, disclosure – of evidence for use in proceedings before a “foreign or international tribunal.” The procedure is available to “any interested person”, which typically includes claimants, defendants, and sometimes complainants in regulatory or quasi-judicial matters.

Crucially, an applicant does not need to have commenced proceedings abroad: it is enough that the foreign proceedings are “within reasonable contemplation”. This flexibility makes Section 1782 particularly valuable where urgent action is required to identify an anonymous wrongdoer before issuing a claim in England.

Applications are generally made ex parte and decided “on the papers”, without the need for an in-person hearing. Once granted, the order is served on the respondent, who is usually given 30 days to comply or to move to quash. If the respondent contests the order, the court may list a short hearing.

How might this help identify wrongdoers in English media disputes?

Consider the following familiar scenarios:

• Defamatory X (formerly Twitter) posts: An anonymous X user publishes seriously defamatory posts about an individual in England. A Section 1782 application could be made in the federal district court in Texas, where X is headquartered, compelling X to disclose identifying information such as IP addresses and linked email or contact details.
• Anonymous online reviews: A defamatory post appears on a U.S.-based platform such as TripAdvisor (headquartered in Massachusetts) or Glassdoor (headquartered in California). A Section 1782 application could be brought in the relevant federal district court in those states to require those platforms to provide identifying information relating to the anonymous reviewer.
• Email-based blackmail: An anonymous Gmail account is used to threaten a public figure with exposure of private information unless payment is made. A Section 1782 order could be sought in the Northern District of California to compel Google to disclose identifying information linked to that Gmail account.

In each case, the respondent – X, TripAdvisor, Glassdoor or Google – is subject to U.S. jurisdiction but is beyond the direct jurisdictional reach of an English NPO or third party disclosure order under CPR 31.17. Evidence obtained under Section 1782 can therefore be used to identify the wrongdoer and support proceedings in England, without the delays and jurisdictional hurdles that often attend NPO applications and third party disclosure applications against U.S. entities.

The legal framework

To obtain an order under Section 1782, an applicant must satisfy three statutory conditions:

1. Use in Foreign Proceedings: The discovery must be for use in actual or reasonably contemplated foreign proceedings.
2. Interested person: The applicant must be an “interested person” – typically a current or potential claimant or defendant.
3. Person in the district: The individual or entity from whom discovery is sought must reside or be found within the district of the federal court where the application is made.

Once these are met, the U.S. district court exercises discretion guided by the four Intel factors (from Intel Corp v AMD Inc, 542 U.S. 241 (2004)):

• whether the evidence sought is otherwise obtainable abroad (e.g., from a foreign subsidiary of the target entity);
• the nature and receptiveness of the foreign tribunal;
• whether the request circumvents foreign restrictions or U.S. policy; and
• whether the request is unduly intrusive or burdensome.

In practice, English courts are viewed as receptive to U.S. assistance, and U.S. courts regularly grant discovery for use in English proceedings.

The most common points of contention arise under the fourth factor, where respondents will argue that the request is overly broad or not narrowly tailored, seeks privileged or confidential information without appropriate safeguards, and/or is speculative or irrelevant (i.e., a “fishing expedition”).

Breadth of discovery

The evidence that can be sought under Section 1782 is tantamount to full U.S.-style discovery, encompassing depositions, document production, interrogatories and requests for admission. This extends significantly beyond the scope of disclosure under the CPR. For English litigants, this can be both a blessing and a risk: an overly broad request may be criticised as a fishing expedition, yet a carefully tailored request can yield far more than any domestic disclosure order.

The discovery sought must also be within the respondent’s “possession, custody or control.” U.S. affiliates of international tech companies can therefore be ordered to produce material stored overseas, provided they have practical control of it.

Procedure and costs

Section 1782 applications must be filed in the district where the target entity is located – i.e., Texas for X, California for Google, Massachusetts for TripAdvisor, and so on.

Each application must include:

• a petition or notice of motion (i.e., an application notice);
• a memorandum of law (i.e., written submissions);
• a supporting affidavit or declaration (i.e., a witness statement); and
• a proposed order.

The applicant must commence a “miscellaneous action” in the relevant federal district court. Local filing fees are modest, and applications are usually determined without a hearing. Even where pro hac vice admission is required (temporary permission for an out-of-state lawyer to appear), the process is generally simple and inexpensive. In many cases, the total cost will be less than that of an English NPO or a third party disclosure order under CPR 31.17, particularly if no motion to quash is filed – something that can rarely be said for proceedings involving U.S. courts.

What about First Amendment protections?

The most frequently raised point in media-related Section 1782 applications is that compelled disclosure would infringe U.S. free speech rights under the First Amendment.

The prevailing view, however, is that those protections extend only to U.S. citizens or those within U.S. territory. Where the evidence suggests that the anonymous speaker is abroad and the publication is targeted at an overseas audience, the First Amendment is not engaged.

Recent cases illustrate this developing area:

• In re Ex Parte Application of Gregory Gliner, No. 24-4624 (9th Cir. Apr. 1, 2025): The Ninth Circuit reversed a district court’s order denying discovery from a California company for use in English defamation proceedings, holding that the evidence did not suggest that the First Amendment was implicated; the record did not show that the author of the allegedly defamatory publication was a U.S. citizen or located in the United States.
• Zuru, Inc. v Glassdoor, Inc., 614 F Supp 3d 697 (N.D. Cal. 2022): The court ordered disclosure of anonymous reviewers’ identities for use in New Zealand proceedings, holding that U.S. free-speech principles should not override reputational rights recognised abroad: “Our country’s commitment to free speech isn’t universally shared… the fact that the United States prioritises free-speech rights over reputational rights doesn’t mean its hierarchy of rights should control when courts evaluate § 1782 applications.”
• In re Ex Parte Application of Team Co Ltd, No. 22-mc-80183-VKD (N.D. Cal. Feb 1, 2023): The court denied Google’s motion to quash an order to unmask the author of an anonymous Google review of a Japanese restaurant, finding that there was no indication that the reviewer was a U.S. citizen or resident and thus holding that the First Amendment did not apply.

Earlier cases such as in OpenMind Solutions v Does 1-39 (2011 WL 4715200, N.D. Cal. 7 Oct 2011) and Highfields Capital Management v Doe, 385 F Supp 2d 969 (N.D. Cal. 2005), have experimented with balancing tests weighing reputational harm against potential chilling effects on speech. Yet the trend – especially where the record indicates that the anonymous speakers are non-U.S. citizens who are located abroad – has been to treat First Amendment concerns as peripheral and to address them, if at all, under the Intel factors.

When orders are challenged

If a respondent brings a motion to quash, it will typically argue that the request is overbroad, burdensome, seeks privileged information, or implicates the First Amendment. The applicant must then justify the request. Courts have a wide discretion: they can narrow subpoenas or require confidentiality safeguards.

Corporate respondents vary in their response. Some – such as Google – often comply once a valid order is served. Others – like X and Glassdoor – have at times opposed discovery on free speech or burden grounds. Even so, many Section 1782 orders have ultimately survived challenge, particularly where the underlying proceedings involve well-founded allegations of defamation, harassment, or privacy breaches.

Why it matters to English media law practitioners

English claimants frequently face the jurisdictional brick wall of U.S.-based intermediaries, or the complicating factor of those companies having established European headquarters in Dublin, and then asserting that relevant user information and personal data is held and processed in Ireland. This makes service of NPOs or third party disclosure orders under CPR 31.17 outside of the jurisdiction cumbersome, and cooperation from platforms uncertain. Section 1782 offers a structured and judicially supervised route in the U.S. to obtain disclosure directly from those entities.

Importantly, the statute’s flexibility means it can be used pre-action, allowing claimants to identify wrongdoers before issuing proceedings in England – and to do so without breaching the U.S. Stored Communications Act.

For media practitioners, Section 1782 should no longer be regarded as an exotic commercial-litigation device (see e.g., South Carolina Insurance Co. v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24, where the House of Lords referred to the fact that any party preparing their case in the High Court is entitled to exercise the right to use the procedure under U.S. law; and more recently, Nigeria v Process and Industrial Developments Ltd [2020] EWHC 2379, where the Court, in the course of a decision on a challenge to an arbitration award on grounds of fraud, referred to the fact that evidence obtained through a Section 1782 request made in the U.S. District Court for the Southern District of New York gave rise to a prima facie case in this regard). Rather, it is a practical, cost-effective, and increasingly judicially accepted mechanism for unmasking anonymous online wrongdoers.

A complement, not a replacement

However, Section 1782 is not a panacea. It can only reach persons or entities “found” in the U.S., and orders are enforceable only against them. Nor does it obviate the need for English proceedings: its utility lies in enabling claimants to obtain the evidence needed to bring them. But for media and privacy lawyers confronting online anonymity and global platforms, it represents a powerful – and often underused – addition to the procedural toolkit.

Conclusion

Media practitioners are right to observe that the third party disclosure procedure under CPR 31.17 offers a more flexible and proportionate route than NPOs. Yet, as online publications transcend borders, domestic procedural tools have their limits.

Section 1782 offers precisely the kind of transnational mechanism now essential in modern media disputes – a pragmatic, court-supervised means of compelling U.S.-based platforms to produce information critical to English claims.

It is, in short, the “third, even better alternative” for identifying wrongdoers – and one that every English media lawyer should have in their armoury.

Chris Zabilowicz is a member of 5RB and is admitted to practise law in New York and California. He accepts instructions to bring 28 U.S.C. § 1782 applications in U.S. federal district courts nationwide on behalf of claimants and defendants involved in media disputes in England and Wales.