“The [Reviews] may be grouped by themes – and indeed the strikingly similar language – which is used in each case. There are allegations of (a) rudeness, aggression and incompetence; (b) aggression to a female relative; (c) references to undertaking research about [the Claimants] (in particular Richard Davidoff) online. (In one case, the review gives the wrong first name as ‘David’, which would be unlikely is the person had in fact undertaken the Google search suggested.) The majority of these reviews are from accounts who have had only… one activity ever, which is to publish the single defamatory review. Secondly, where the accounts have posted statements about other businesses, on each occasion the posts are also one-star reviews ostensibly calculated to destroy a business activity. The account of ‘Lisa Mathieson’ has in fact posted two such reviews, both about the Claimants. … The Claimants intend to commence proceedings for libel and/or malicious falsehood, in order to obtain damages and an injunction to prevent the ongoing campaign. To that end the Claimants seek the relief sought in order to identify the individual(s) who have posted the [Reviews].”
“The Reviews are defamatory of both the Companies and my individual clients. Richard Davidoff is named in the review: (a) It is the claimants’ case that each of the individual claimants is closely identified with the company through their work: this is a family business, which largely operates in and around Jewish communities in North London. Each of the individual claimants drives an ABC Estates branded car. Moreover, these reviews are on sites designed to be looked at by those seeking to do business with the claimants. (b) The reviews contain a number of serious and highly defamatory allegations repeatedly published to relevant large audiences and are likely to cause the claimants serious harm and serious financial loss. The Fake Reviews also constitute malicious falsehoods. They are false, fabricated statements which Unknown person(s) know are untrue, but which are calculated to cause pecuniary damage to the Companies and to my individual clients…”
“(A) The use of the Norwich Pharmacal jurisdiction to obtain information to identify those who have published material online anonymously engages the Article 8/10 rights of the anonymous posters (and, depending upon the circumstances, potentially in addition the Article 10 rights of the respondent): see Standard Verlagsgesellschaft mbH -v- Austria (No.3) (7 December 2021 Application No. 39378/15). It is arguable that the exercise of the Norwich Pharmacal jurisdiction in such cases by the English Court needs to be reviewed to ensure that the Court has properly considered the engaged Convention rights before making any order. (B) Pending further argument, it appears to me arguable that the Court needs first, to assess the interference with the Article 8 (reputational) rights of the Claimants said to be occasioned by the publications complained of, second to assess the interference with the Article 10 rights of the anonymous posters in making a Norwich Pharmacal order, and then carry out the conventional parallel analysis and intense focus on any competing convention rights. Under English defamation law, assessment of the extent of any interference with the Article 8 rights of the claimant, that might require the putative defamation claimant to demonstrate that there has been a real and substantial tort. As part of that, the claimant might be required to demonstrate that it has a real prospect of satisfying, inter alia,s.1 Defamation Act 2013 (as that section applies to individual and corporate claimants).”
“The information and documents disclosed pursuant to… this Order may be used by the Applicants solely and exclusively for the purpose of these and any connected legal proceedings.”
“The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered.” [26] It follows that it is important to analyse with some care in what precisely lies the alleged wrongdoing. There is nothing inherently wrong in chartering an aircraft, unless it be said that any trading by a judgment debtor which involves using his assets for that purpose rather than satisfying a judgment debt is in itself wrongdoing. However I reject that proposition. It would lead to a jurisdiction of absurd width. It is no answer to that objection that the exercise of the jurisdiction would be subject to discretionary considerations. It would be absurd and exorbitant if parties were exposed to the risk of having to defend applications for discovery on the basis of no more than having traded with a person who turns out to have been at the relevant time a judgment debtor. It would encourage speculative litigation.”
“In my judgment, [this] argument is misconceived. If the claimant is right in thinking that the policy holder has fraudulently asserted that his parents moved out of their home for a period to allow him and his family to occupy the house exclusively, it is arguable that his parents were involved in the wrongdoing. But I can see no basis on which it could be said that his mother’s mobile phone service provider was more than a mere witness or, in Mann J’s phrase from Various Claimants -v- News Group Newspapers Ltd[2014] Ch 400 , engaged with the wrong. The fact that the phone account holder would have been able to pretend she was somewhere she was not does not draw the phone company into her wrongdoing. It is true that the phone records may assist in establishing the truth of the parents’ whereabouts. But in that regard the phone company is manifestly a mere witness. Its position is no different from anyone else who may be able to provide evidence about that issue – for example, the nephew living in Milton Keynes, or the neighbours to the parents’ property, or, as Lewis LJ helpfully suggested in the course of the hearing, the milkman. The phone company’s position seems to me to be analogous to that of a security company which installs CCTV cameras at a property. Such cameras are also a feature of modern life. The purpose of the cameras is to detect or deter burglars who have no right to be at the property, but they may also incidentally detect the presence of the householders who have every right to be there. The security company would therefore be a witness to any unlawful activity engaged in by the householders but it would not be drawn into that activity in any way.”
“… a Norwich Pharmacal order may be made against the police if the police have, using their statutory powers, carried out an investigation into alleged wrongdoing and, as a result, now possess information that would assist a claimant in bringing a civil claim for that (or related) wrongdoing, and that the claimant has no other practicable way of obtaining the information.”
“…a potential victim of a defamatory statement must be awarded effective access to a court in order to assert his or her claims before that court. In the Court’s view this means that the domestic courts will have to examine the alleged claim and weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – the conflicting interests at stake, before deciding whether the data relating to the author’s identity are to be disclosed. In the instant case, those conflicting interests do not only comprise the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, but also its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly...”
“It is unsurprising that the most robust protection of anonymous speech is to be found in US law. In McIntyre -v- Ohio Elections Commission (1995)514 US 334, a case on a statute prohibiting anonymous political literature, it was famously said by Justice Stevens that: ‘Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honourable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.’”
“… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…”
“… in the context of website postings, the Court has held in a number of cases it would be unjustifiably intrusive and disproportionate to order the disclosure of the identities behind online postings which were barely defamatory, little more than abuse or ‘saloon-bar moanings’ rather than serious allegations.”
“… The proposed order will, if granted, disclose to the Claimants the identities, or at least the e-mail addresses, of users of the Defendant's website who must have expected, given their use of anonymous pseudonyms, that their privacy would be respected. As the Court of Appeal observed in Totalise PLC -v- The Motley Fool Ltd[2002] 1 WLR 1233 [25], in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court. Equally, it is clear that no order should be made for the disclosure of the identity of a data subject, whether under the Norwich Pharmacal doctrine or otherwise, unless the court has first considered whether the disclosure is warranted having regard to the rights and freedoms or the legitimate interests of the data subject (see paragraph 6 of schedule 2 of theData Protection Act 1998 ). As the Court of Appeal pointed out (at paragraph 26 of the judgment) it is difficult for the court to carry out this task if it is refereeing a contest between two parties neither of whom is the person most concerned, that is to say the data subject…”
“… there is a high duty to make full, fair and accurate disclosure of material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case. It is the particular duty of the advocate to see that the correct legal procedures and forms are used; that a written skeleton argument and a properly drafted order are prepared by him personally and lodged with the court before the oral hearing; and that at the hearing the court's attention is drawn by him to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed.”
“At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as ‘the consensus requirement’, is that the meaning must be one that ‘tends to lower the claimant in the estimation of right-thinking people generally.’ The Judge has to determine ‘whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society’: Monroe -v- Hopkins[2017] 4 WLR 68 [51]. The second requirement is known as the ‘threshold of seriousness’. To be defamatory, the imputation must be one that would tend to have a ‘substantially adverse effect’ on the way that people would treat the claimant: Thornton -v- Telegraph Media Group Ltd[2011] 1 WLR 1985 [98]...”
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
“The impact of Lachauxis that such reputational harm must be proved... Drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn.”
“(a) In general, an unverifiable statement of opinion cannot be complained of as a falsehood for the purposes of a claim in malicious falsehood: Euromoney Institutional Investor plc -v- Aviation News Ltd[2013] EWHC 1505 [102]. (b) This may be subject of qualification. One such qualification was… identified by Tugendhat J in [103]: where it can be shown, as a fact, that the commentator does not hold the expressed opinion: see Gatley §21.7 and footnote 55 (12th edition, 2013). (c) It is perhaps also important to bear in mind that, in defamation cases, it was always open to a defendant to seek to prove that the expressed opinion was true (Gatley §11.20). If, in context, a defamatory publication conveyed the meaning, as an expression of opinion, that the claimant was dishonest, a defendant could seek to prove that the claimant had been dishonest, as a matter of fact. Largely the ability to do so would be dependent upon the meaning conveyed and whether the expressed opinion was verifiable or capable of being proved true. In the example given by Gatley of a theatre critic stating that the claimant’s play was a bad play and not worth seeing is not capable of being proved objectively true, whereas the opinion that someone was dishonest could be. (d) It seems to me, therefore, that a statement of opinion that is capable of being proved true is, in principle, capable of founding an action for malicious falsehood where the opinion can be proved to be false and the claimant takes on the burden of doing so. In such circumstances, however, there may be substantial obstacles in the path of establishing that it was published maliciously.”
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“You need a user account to post a review. Just like your first kiss, you only get one user account and it should involve a real person. Your username, profile description and picture must reflect who you are (don’t go impersonating other people, thanks) and can’t be harmful, hateful, discriminatory, defamatory or obscene – because everyone can see your profile! If you do include something you shouldn’t, or create more than one account, we can delete your account/s. “Your user account needs to be connected to a valid, permanent email address in case we need to contact you…”
“[The Reviews] are false, fabricated statements which Unknown person(s) know are untrue…”