In a judgment handed down last week, the High Court ordered the defendant, Mr Neil Hargreaves, to reveal the identities of certain users of a website owned and operated by him, www.owlstalk.co.uk, who had posted defamatory messages on the website regarding Sheffield Wednesday FC, its chief executive, chairman and directors. The users had all registered with the website using pseudonyms such as “Halfpint”.
The postings were prompted by disgruntled Sheffield Wednesday fans unhappy with the way the club was being run and the way its money was being spent. The thrust of the allegations was that the chairman and directors had misspent the club’s money and were incompetent in their running of the club. The club and the individuals therefore sought, and were successful in obtaining, an order that Mr Hargreaves reveal the true identities of the users behind the postings, including their full names and email addresses.
Most users who sign up to blog websites will have no idea that they may be liable for comments they post, let alone that their true identities may be revealed. An expectation of invulnerability prevails. This case establishes that the right to privacy (ie the maintenance of anonymity) of those who post such comments may not be paramount. Users may be liable for defamatory postings, especially where such postings are in breach of the website’s rules not to post defamatory or abusive material. Most websites will contain such a rule – whether it is read or understood is another matter, but it seems this could be irrelevant. The only relevance it may have is when the court is balancing the user’s right to freedom of expression against the claimant’s right to privacy: if the user has been warned that, should they post defamatory material, their account may be suspended, the user can hardly argue that their right to freedom of expression is being encroached upon.
However, care also needs to be taken by claimants before rushing off to court to obtain an order for disclosure of users’ identities if they feel that they have been defamed on a website. In this case, the judge did not order disclosure of the identities of all users requested by the claimants. He considered whether the postings were truly defamatory and, even if they were, whether they were simply “trivial”, “barely defamatory” or “little more than abusive or likely to be understood as jokes”. To order disclosure in such circumstances would, he considered, be “unjustifiably intrusive”.
Any claimant must therefore consider whether the postings are truly defamatory and indeed, it would seem, defamatory enough. The case does not provide a remedy for claimants who are simply annoyed that someone has posted abusive and unpleasant material about them on a website.
One question which remains is whether the website owner should reveal the true identities of the users when initially requested to by the claimant or its solicitors before any proceedings are issued. Currently, website owners are not inclined to do so, relying on data protection legislation. They do not wish to risk being sued by the user whose identity is revealed. However, when faced with a court order compelling them to disclose the information, the website owner is in a much stronger position as they can then rely on the order as a defence to any claim for breach of data protection legislation or infringement of the user’s right to privacy. In this case Mr Hargreaves did not oppose the order sought by the claimants but simply left it up to the court to decide what action it should take. That way, he could remain “blameless”.
The obtaining of an order cannot be guaranteed, regardless of how convinced a claimant is of the defamatory nature of the postings. It remains in the discretion of the court whether or not to make any order. As the judge stated, “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.”
However, it seems that the tide may be turning and the courts will be more willing to grant orders disclosing users’ true identities. So bloggers beware: your invisibility cloak may not be as effective as you think.