Anonymous Internet Harassment Anonymity and jurisdiction relating to antisocial behaviour online

Anonymous Internet Harassment

Anonymous Internet harassment is a terrible ordeal for the victim. One thing is being harassed when you know who it is, but it is even more difficult to cope when you don’t.

“Envy is one of the most potent causes of unhappiness” Bertrand Russell

Two of the most common issues that arise in Internet related litigation are Anonymous Internet Harassment and jurisdiction.

Anonymous Internet Harassment and the ubiquity of the Web are just two of the many reasons why the Web should have its own distinct body of law. In my opinion, there might eventually be Internet law, just as there is admiralty law or the law of the sea.

The recent case of:

JSC BTA Bank v Solodchenko and Others: ChD [Mr Justice Henderson] 05 August 2011

is relevant to cases related to the Internet because it concerns a client who wanted to remain anonymous, a common theme in online defamation and harassment cases.

In the JSC case the claimant, JSC BTA Bank (the bank), applied for disclosure of information and documents against a firm of solicitors. The solicitors were on the record acting for the 14th Defendant (who shall be known as X). The application was made in the Chancery Division in which the bank sought to trace and recover the proceeds of AAA rated investment bonds with a nominal value of $290 million which it alleged had been fraudulently misappropriated by the 18th defendant and a number of co-conspirators.

A worldwide injunction was granted against Xs assets on the grounds that the bank had a good arguable case that he was party to the conspiracy to defraud. X made no effort to comply with the order and was found to be in contempt of court in absentia and a committal order was made. The bank issued an application for disclosure against the solicitors, seeking disclosure of Xs contact details and assets.

The solicitors acted on his behalf and were evidently able to communicate with him. Furthermore, the solicitors made applications on his instructions when it suited them to do so. As well as raising issues worthy of consideration where a client is guilty of contempt of court and/or in breach of asset disclosure orders, it also raises the issue of when a court will exercise its discretion to order disclosure having regard to the competing interests.

The application was allowed:

There was an inherent power under section 37(1) of the act to make any ancillary order, including an order for discovery, to ensure the effectiveness of any order made by the court, if it was just and convenient to do so.

There was a clear distinction between a client`s right to claim legal professional privilege, which was absolute, and the right to protection of confidential information which was capable of being overridden by other considerations, where it was well established that confidentiality did not of itself justify non-disclosure of a relevant document or information.

There is a strong public interest in ensuring that court orders are obeyed. The primary purpose of the disclosure was to aid enforcement of the committal order. In the absence of that order, the court would probably not be prepared to make the order sought, but the committal order made all the difference and the balance came down in favour of ordering disclosure by the Solicitors of all contact details, past and present, which it held for X.

In another recent case:

 Louise Bacon v Automatic Inc and others [2011] EWHC 1072 [QB]

the issue of jurisdiction and service by email was raised. The case concerned the question of whether a defendant domiciled out of the jurisdiction can be served by email with a claim form issued in England?

In this case the claimant issued proceedings against 3 defendants all of whom were domiciled in the US. The relief requested by the Claimant was a Norwich Pharmacal Order. A Norwich Pharmacal Order is useful in online defamation and harassment cases because they can be used to obtain pre-action disclosure from third parties.

The jurisdiction to make third party disclosure orders received its modern recognition in:

Norwich Pharmacal v Customs & Excise [1975] AC 133. CPR 31.18,

provides that the express powers under the rules do not limit any other power which the court may have to order disclosure against a person who is not party to proceedings.

There are 3 basic requirements which must be satisfied before an order can be made:

1. A wrong must have been arguably carried out by the ultimate wrongdoer;

2. There must be a need for an order to enable action to be brought against the ultimate wrongdoer; and

3. The person against whom the order is sought must have facilitated the wrongdoing and be likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued. Norwich Pharmacal Orders are especially useful in online defamation cases.

An individual or company motivated by envy, a grudge or good old fashioned competition may decide to start to malign a person or a company through a website. The individual or company under attack may start to lose business or be shunned by friends as a result. The person under attack may start to suspect that a wrong has been committed but have no evidence of the actual scale of the wrong. Using a Norwich Pharmacal Order, it is possible to obtain evidence to prove the existence and scale of the wrong that has been committed. This can even be done without the wrongdoer knowing about it.

A Norwich Pharmacal Order enables a victim to obtain evidence and information from an innocent third party that is mixed up in the wrong such as an intermediary website or a host provider. In the Louise Bacon case the NPO required the defendants to disclose to the Claimants solicitors the names and addresses and other information of the person responsible for publishing statements which the claimant alleged were defamatory. The order was granted by the High Court.

The first defendant requested that any court order be emailed to them.

The second defendant, however, requested that a US court order be obtained and provided a website address.

The third defendant ignored all requests for disclosure.

The claimant sought permission from the court to serve the claim form out of the jurisdiction on the grounds specified in paragraph 3.1[2] of Practice Direction 6B (a claim is made for an injunction ordering the defendants to do an act within the jurisdiction, namely disclose to the solicitors the information sought).

The claimant successfully sought permission to serve proceedings by an alternative method to those set out in the Civil Procedure Rules 6.40(3). The method for which the claimant sought permission was service at the email address specified by the defendants who were out of the jurisdiction.

The judge found that service can be effected out of the jurisdiction by email.

It is crucial that there is evidence that the defendant has expressly confirmed that it will accept service by email. This can be indicated by expressly stating this on their website.

 

Please see our other articles on:

Online defamation

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