Mr Justice Eady recently granted an interim injunction to prevent a group of individuals waging an anonymous internet campaign against a company and its employees. The case provides another example of how the courts are now cracking down on individuals who mistakenly think they can disseminate actionable material on the internet with impunity.

In Sunderland Housing Company and Peter Walls v Baines & Others [26 July 2006] the claimant housing company and its chief executive (on his own behalf and on behalf of a number of represented parties) is suing a group of individuals and a company for libel, harassment and unlawful data processing in relation to a sustained website campaign over a period of two years.

The website in question and its associated discussion forum were almost entirely anonymous and contained a number of very serious allegations against the claimant housing company and its employees. The claimants applied for an interim injunction against a number of individuals and a company which they suspected of being behind the website to prevent them republishing the libels, continuing to process personal data unlawfully and harassing certain employees of the claimant company by repeatedly publishing anonymous libels. They also applied for a Norwich Pharmacal disclosure order against the first defendant, who had been revealed as the administrator of the website and discussion forum, requiring him to disclose the names of others involved in the operation of the website.

Although Mr Justice Eady refused to grant an injunction against the second and fourth defendants, he granted an interim injunction against the first and third defendants, together with what is now being referred to as a 'John Doe' injunction against individuals responsible for the website but whose identities are not known. He also granted a Norwich Pharmacal order against the first defendant, requiring him to disclose the identities of others involved in the web-site and forum. The first defendant is appealing against the decision.

Identifying wrongdoers

A Norwich Pharmacal order can be made against anyone who has become 'mixed up' in wrongdoing (whether innocently or not) and can identify wrongdoers, which enable the claimant to bring proceedings against them. In libel cases, such orders are most commonly sought against internet service providers (ISPs), who may often be in a position to provide a range of information about internet users such as their names, addresses, credit card details, and (often most crucially) their internet protocol addresses, which enable claimants to trace particular defamatory statements to individual computers.

Breadth of culpability

Earlier this year, Michael Keith-Smith, a prominent member of the UK Independence Party, was awarded £10,000 damages plus costs after he was libelled on an internet discussion board by an anonymous contributor. Mr Keith-Smith was able to bring his claim after obtaining a Norwich Pharmacal order requiring Yahoo! to disclose the identity of the anonymous internet user. However, it is not just ISPs who can be ordered to provide information. As the Sunderland case shows, orders may also be made against people who administer websites and discussion forums or assist in their operation, for example by contributing material or acting as moderators.

The first step for a claimant in an internet libel action is often still to contact the ISP and request that a particular posting or website be removed. However, where a website owner is determined to cause as much damage to the victim as possible, successfully persuading the ISP to take down the website may be only a temporary remedy until the web-site owner finds another overseas ISP willing to host his website.

The victim may therefore be left with no alternative but to pursue the authors of the defamatory statements to ensure they are not repeated. While such individuals may often not be worth suing financially, the threat of contempt of court proceedings against them may at least be sufficient to prevent republication of the libel.

Interim injunctions are notoriously difficult to obtain in libel actions. However, where such an injunction is sought against a loose group of individuals as opposed to a media organisation, a simple intention to justify may not be sufficient to persuade a judge that the defendant has any significant ability to prove the truth of the allegations and to resist the order being made. As in the Sunderland case, an application for an interim injunction may therefore succeed.

Anyone wishing to use the internet to wage a campaign against another individual or company therefore plays a risky game. While it is still possible for sophisticated internet users to hide behind a cloak of anonymity, most internet users tend to leave a trail of evidence that enables a determined claimant to track them down. And the courts are now beginning to catch up with the new technology. |

Ashley Hurst is a solicitor in the media litigation group at Olswang.