In the recent case of Davidoff v Google LLC, a group of claimants (referred to as C1-C6) sought a Norwich Pharmacal order against the defendant, Google. The claimants alleged that they were the victims of fake reviews posted on the Trustpilot review website, tarnishing their reputation and business. While they were granted a previous Norwich Pharmacal order against Trustpilot, enabling them to identify the email addresses linked to the reviewers, their recent application against Google was met with a refusal.
Legal principles
Before understanding the court's decision, it's necessary to understand the legal principles of Norwich Pharmacal orders:
- Wrongful Act: The applicant must demonstrate that a wrongful act has occurred or arguably occurred by an ultimate wrongdoer.
- Necessity for the Order: The order must be necessary to enable action against the ultimate wrongdoer.
- Involvement of the Party Sought: The person or entity against whom the order is sought must be mixed up in, facilitating, or likely to provide information about the wrongdoing.
In Norwich Pharmacal v. Customs and Excise Commissioners [1974] AC 133, the House of Lords recognised the equitable jurisdiction which enables the court to require a respondent who is “mixed up” in wrongdoing to provide “full information”.
On the facts of this case, the claimants based their application on allegations of libel and malicious falsehood arising from the publication of reviews on Trustpilot. However, the court found the defamation claims to be weak, as there was no evidence of serious harm to reputation or significant financial loss due to the reviews. Consequently, the claimants failed to establish that a wrongful act had occurred in the context of defamation.
However, the evidence indicated a strong prima facie case that some of the reviews were not genuine. In this regard, C5 and C6 were able to demonstrate a claim for malicious falsehood with a real prospect of success concerning specific reviews. This demonstrated that a wrongful act had arguably been carried out by at least one wrongdoer. C1-C4, on the other hand, did not meet this requirement.
Decision
While the claimants argued that Google's Gmail platform had facilitated the registration of email addresses used by the wrongdoers on Trustpilot, the court made a crucial distinction on the facts of this case. The alleged wrongdoing was the publication of the fake reviews on Trustpilot – not the creation of Gmail accounts in circumstances where the alleged unlawful allegations had not been published in the Gmail email.
In this second phase, Google's Gmail had played no role in either engaging in or facilitating the alleged wrongdoing, as the alleged unlawful content had not been disseminated or published on the Gmail service. Therefore, Google's involvement did not meet the necessary criteria for a Norwich Pharmacal order. Thus, the Judge refused the application. Mr Justice Nicklin dismissed the case and described it as 'hopelessly weak.'
Lessons learned
This case is a useful reminder of the complexities of invoking the equitable jurisdiction of Norwich Pharmacal orders in the digital age. While the Claimants were able to secure an order against Trust Pilot, they faced a different outcome when dealing with Google LLC. It highlights the critical importance of establishing a direct link between the facilitator of wrongdoing and the alleged wrong before a court will grant an order compelling a third party to reveal the identity of the wrongdoer.
In essence, this case highlights the need for precision and a clear connection between all parties involved in such legal proceedings.
If you wish to seek further advice on any of the issues discussed please contact our author Olivia O'Kane below.
