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A fine balance – the Rights of Justice vs the Rights of Privacy in Norwich Pharmacal Orders

Neil Cahill
20/12/2022

Locations

Ireland

The recent decisions in Morris & Moore v Harris and Twitter [2022] IEHC 3712 have provided a useful reminder of the general principles in "Norwich Pharmacal" type orders and the balancing exercise that the courts have to undertake in such cases.
 
What are Norwich Pharmacal orders?

A Norwich Pharmacal order is a type of disclosure order.  Sometimes a Plaintiff who has suffered loss or damage has difficulty in identifying the appropriate person or entity to pursue. This is often the case where people are defamed on internet platforms by parties that are anonymous. A Norwich Pharmacal order allows a claimant to apply to court to seek information or documents from an innocent party that helps the claimant to identify the appropriate party to sue for the wrong that they have suffered.

In recent times, they have become a means through which injured parties have sought to obtain information from technology companies such as internet hosting services, internet service providers or social media platforms where faceless individuals have set up accounts defaming or criticising companies and individuals. 

The extent of information to be provided in these circumstances is usually at the core of the debate.

Brief summary of the facts in Morris & Moore

The recent cases related to two journalists who were seeking disclosure of the identity of, or information in connection with, persons allegedly involved with certain Twitter accounts which each of the Plaintiffs claims have defamed them in a number of “tweets” which appeared on the Twitter  .  The debate was over the extent of information that Twitter was obliged to provide under an order of this type.

The Court's Approach

The Court in Morris & Moore reiterated the approach taken in Board of Management of Salesian Secondary School v Facebook Ireland [2021] IEHC 287 where the following general principles were set out: -
 
  • The remedy is limited to cases where the names and identity of the wrongdoers are sought, rather than factual information regarding the commission of the alleged wrongdoing;
  • The remedy is confined to cases where “a very clear proof of a wrongdoing exists”. However, in Grace v Hendrick [2021] IEHC 320, Hyland J was prepared, in the particular circumstances of that case, to make a disclosure order pursuant to the inherent jurisdiction of the court in circumstances where no clear evidence of wrongdoing had been established;
  • The procedure “requires a balancing of the requirements of justice and the requirements of privacy”;
  • “Where the court is satisfied that the applicant’s right to disclosure of the information is outweighed by some countervailing right or interest of the person sought to be identified, it may refuse to make the order sought. In such cases the court must carry out a careful balancing exercise to see where the balance of justice lies. Each case will be considered on its own facts and circumstances”
Commentary

Having carried out the balancing exercise outlined above, the Court ultimately granted orders to the Plaintiffs compelling Twitter to provide the information outlined in the order.  This was done on the usual basis that the Plaintiff would be liable for Twitter's costs of the application and complying with the order.

It is likely that Norwich Pharmacal orders will become more commonplace given the explosion of data held by these types of company.  We can expect that the balancing exercise that the courts are required to undertake will be further refined as these applications become more commonplace.

Written by: Neil Cahill
 

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