Defamation in anonymous reviews: What you need to know

Norwich Pharmacal Orders [1] were considered by the High court recently in Davidoff & others v Google LLC [2] . The decision serves as a helpful reminder to would-be claimants of the requirements for success in a Norwich Pharmacal application against a third party when seeking a perpetrator’s identification details. The case concerned anonymous comments made on the Trustpilot website via a Trustpilot account created with falsified information and a Google email address, which was itself created with the intention of concealing the perpetrator’s identity.

In the wake of this decision, the bar may be set higher than ever before for claimants seeking to bring defamation and libel claims against an unidentified perpetrator in relation to comments viewed as defamation in anonymous reviews.

What happened in Davidoff & Others v Google LLC?

The Davidoff family and two of their family companies brought an application for a Norwich Pharmacal Order against Google LLC in an attempt to oblige Google to identify the account holders of various Google email addresses which were created with false details to make Trustpilot accounts. Those Trustpilot accounts were then used to post negative reviews about the Davidoff companies.

Norwich Pharmacal Orders require a third party to disclose the identity of an alleged wrongdoer. The advent of the internet and social media, including online review platforms, has increased the opportunity for the anonymous posting of potentially defamatory statements. Where website operators are aware of the identity of the person making such statements, claimants have used applications for Norwich Pharmacal Orders to seek information on the individuals posting defamatory statements.

In this case, the applicants had made a previous Norwich Pharmacal application against Trustpilot. The order was granted, but failed to assist them in identifying the individuals posting the reviews, as the Trustpilot accounts were only linked to the Google email addresses created with falsified information. The applicants therefore sought a Norwich Pharmacal Order against Google, to identify the individuals who had set up the Google email accounts associated with the Trustpilot accounts.

The application against Google was unsuccessful. In order for a Norwich Pharmacal Order to be made, three limbs must be satisfied:

1. A wrong must be carried out by a wrongdoer;
2. There must be a need for an order to enable an action to be brought against the wrongdoer; and
3. The person against whom the order is sought (in this case Google) must be “mixed up in, so as to have facilitated, the wrongdoing” and be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be pursued. [emphasis added]

Nicklin J held that Google were not sufficiently ‘mixed up in the wrongdoing’ to justify an order being made against them. Although Google allowed accounts to be created with false details, this was not the ‘wrong’ which formed the basis of the application here. The ‘wrong’ the applicants were pursuing was the posting of reviews using Trustpilot accounts. Although Google email addresses were used for this purpose, Google’s ‘involvement’ ceased after the Trustpilot account was created, at which point Google had no role or control.

Nicklin J made the analogy of a road traffic collision, if a victim sought an order against the dealership which sold the car in question. The dealership may have facilitated the car being driven by the wrongdoer, but it had no role in the collision. In this way, both Google and the hypothetical garage would be ‘mere witnesses’.

The impact on use of Norwich Pharmacal Orders in identifying anonymous online reviewers

Nicklin J’s commentary in this case may have far reaching impacts in the world of defamation law. Reviews posted on any secondary review sites on which users can create profiles using a Google email address (which may or may not be itself created using falsified details) may now become effectively immune to Norwich Pharmacal Orders, given the separation from the initial Google account.

The applicants in this case have seemingly exhausted the options available to them to identify the perpetrators, and Nicklin J’s decision in this case risks leaving many businesses at risk of being subject to defamatory or libellous comments on third party review platforms such as Trustpilot or TripAdvisor (rather than comments made on Google’s own platform) without any recourse in a defamation claim due to the anonymous nature of these reviews.

It remains to be seen whether the applicants will challenge this decision. As it stands parties should be wary when assuming that identification of the email address behind an online account means that its owner can also be identified as a matter of course. This decision is a reminder that just because a third party has knowledge of the identity of the wrongdoer, they will not be ordered to disclose this unless they themselves are sufficiently ‘mixed up in the wrongdoing’.

Defamation in anonymous reviews: How we can support you

Our Commercial Dispute Resolution specialists can advise on all forms of defamation dispute and Norwich Pharmacal applications to identify anonymous potential defendants. We can help to provide commercially-focused, strategic advice to minimise any damage to your business or reputation if/when defamatory comments are published online.

If you have any queries or concerns in relation to the law of defamation or commercial disputes, or if you are interested in receiving legal and practical training in relation to any of the comments made in this article, please contact Gwendoline Davies or James Damarell, who will be very happy to help.

[1] A Norwich Pharmacal Order (named for the case which first established this type of order) is a fairly wide disclosure order which can be made against a person who is not a party or wrongdoer, but who may be able to provide information needed to identify a party/wrongdoer or to facilitate the seeking of redress.

[2] Davidoff & Others v Google LLC