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Who’s defaming you?
By Steven | January 29, 2025
Someone defames you anonymously online. Can you find out who it is?
Maybe. There are legal avenues to seek a court order that an internet host reveal the identity of the person. One of them is called a Norwich Pharmacal order, but as Hugh Tomlinson KC points out, it only applies when the host is “mixed up in” the wrongdoing, and merely hosting an email account doesn’t count.
But court rules in the UK (and in NZ) allow a similar application, and the grounds are wider, though they only apply to relevant documents rather than pure information. Still, any internet host will presumably have records that permit the identity to be revealed.
Although it must be shown (in both countries) that the host is likely to hold relevant information, and that a disclosure order is “necessary”, the cases Tomlinson cites suggest that the necessity barrier will not usually be a high one once relevance is proved. (Under the NZ rules such an application can be brought before a lawsuit against the wrongdoer is filed (rule 8.20), in which case it must be shown that there’s a tenable claim against him or her. Or it can be brought afterwards (rule 8.21), in which case it must be shown that the third party holds documents that would have to have been disclosed if they were a party.
In NZ, an order can also be made under the Harmful Digital Communications Act requiring a host to reveal the identity of an anonymous or pseudonymous poster who has seriously breached the Communications Principles. I’m not aware of any such order having been made though.
It remains to be seen how (or whether?) the Bill of Rights might affect the picture. The US Supreme Court has held that anonymous speech warrants First Amendment protection. I’d like to think that if the poster was engaging in publicly significant speech and was vulnerable to exposure then a court would stop to consider whether a disclosure order is a demonstrably justified restriction on the free speech of the poster …
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