Usually when clients come to us intending to make a legal claim they know who they want to sue. But what happens if you are unable to identify the individual or company that’s causing you damage? A Norwich Pharmacal order, obtained from court, can force a third party to provide you with the identity of someone who is infringing your legal position. This will enable you to instigate appropriate legal action against the wrongdoer.
In the original case, Norwich Pharmacal owned a patent for a particular chemical. The company knew a competitor was importing the chemical into the UK in a way that infringed its intellectual property rights. But it had no way of finding out who was breaching its rights. As a result Norwich Pharmacal brought a case against HM Customs to force it to disclose the identity of the company importing the chemical to the UK.
In deciding to make Customs and Excise disclose the information, the judge said that sometimes through no fault of his or her own a person gets ‘mixed up’ in the wrongdoing of others. Although that person (or company) has no personal liability they do have a duty to help the person wronged (in this case Norwich Pharmacal) by disclosing the wrongdoer’s identity.
THE ONLINE DIMENSION
Norwich Pharmacal orders have been around since 1974 so they are applicable in any context – not just to information published online. And they can be used in a range of litigation cases, not just defamation and privacy cases. But information that appears online and is defamatory , invades privacy or breaches your rights in some other way can so quickly and extensively cause irreparable damage to you personally or commercially that it’s not surprising people increasingly use Norwich Pharmacal orders to address anonymous postings on Instagram, Facebook and other social media channels.
FOUR QUESTIONS BEFORE APPLYING FOR A NORWICH PHARMACAL ORDER
The law in this area has now developed so that anyone seeking an order should think about the following four questions first. The court will use these as tests before deciding whether or not to grant an order:
1. Can you at least argue that wrongs have been committed against you?
2. Is the company you are seeking the order against ‘mixed up’ in those wrongs?
3. Are you going to seek legal redress for what has happened?
4. Is disclosure of the information you are seeking through the order necessary for you to be able to pursue your legal actions against the wrongdoer?
WHAT INFORMATION WILL I OBTAIN IF I GET A NORWICH PHARMACAL ORDER?
It stands to reason that the third party can only give you information it possesses. And remember many social media companies hold limited information about the identity of their users. They are unlikely to have detailed records of the IP addresses used to upload images. Added to this, even if you obtain an IP address, it may be based in a territory that does not recognize UK courts.
Another point to note of Norwich Pharmacal orders is that you will usually have to pay the third party company’s reasonable legal expenses incurred in complying with the order.
WHAT ABOUT VOLUNTARY DISCLOSURE?
Given the risks inherent in this type of litigation Nath Solicitors will usually first try to get the information you need voluntarily. In fact it is considered good practice to approach third parties like Facebook or Twitter informally before going down the Norwich Pharmacal order route.
PRAGMATIC ADVICE FROM NATH SOLICITORS
So Norwich Pharmacal orders are useful tools for those subjected to defamatory and damaging comments, particularly in an online environment where anonymous postings are commonplace. But we’ve shown there are limits to their effectiveness. And it is important to note that seeking an order is just a preliminary step in what could turn out to be an expensive and long drawn out legal fight.
At Nath Solicitors we are always mindful of costs and we never lose sight of your main commercial or personal goals. Often we are able to approach internet companies direct to obtain voluntary disclosure of a wrongdoer’s identity. We then use all our resources and experience to put pressure on the wrongdoer to remove the offending material and compensate you for any loss or damage.
For further advice you can call us on 0203 983 8278 or contact us online.
