Not only has the digital age drastically changed our modes of communication, but the proliferation of the Internet has effectively expanded the global publisher population. Gone are the days when publishers only worked for large, corporate publishing houses. Nowadays, everyone is a publisher, and thereby a critic.
However, problems arise when criticism in the form of an honest opinion crosses shark-infested waters, and morphs into a fully-fledged attack on a business in the process. Further problems arise when these so-called publishers are anonymous or pseudo-anonymous.
Online reputation attackers come in a variety of forms, namely internet trolls, business rivals, and dissatisfied employees and investors. The recent Heir Hunter’s settlement highlights how such anonymous campaigns of online vilification, often result in the unveiling of the attacker’s anonymity cloak, along with quite literally paying the price for the attack, in the form of damages.
On 19 October 2016, it was announced that probate genealogist Philip Turvey of Anglia Research Services had settled a claim for defamation against his long-term rival Daniel Curran, the principal of Finders Genealogists, who regularly appears on the BBC programme, ‘Heir Hunters’.
The dispute arose in July 2014, where an anonymous Twitter campaign was pursued against Mr Turvey and Anglia Research Services under the name of “Purvey”. It was later discovered from a Norwich Pharmacal application (a pre-action application to the court which we explain here) that these Twitter accounts had been created by an employee of Finders Genealogists.
In November 2014, Mr Turvey discovered that a vexatious and defamatory third party Change.org petition had been created, which made false allegations about him. Although, it is not suggested that the petition was created by Mr Curran or his employees. However, a further Norwich Pharmacal order indicated that Mr Curran was responsible for pseudonymous postings on the Which? Website, which signposted a link to the defamatory petition, and also for a defamatory posting on Change.org’s website.
Mr Turvey also alleged that an employee of Finders Genealogists sent an email to a potential client of Anglia Research Services, which attached a PDF file containing the majority of the defamatory Change.org petition, which had since been removed from the Internet.
In light of the Heir Hunters dispute, it can safely be concluded that anonymous and pseudonymous online attackers will not always remain unknown. Indeed, this dispute marks the evolution of the pre-action disclosure jurisdiction for defamation, since this is the first reported decision for over a decade ( EWHC 297 (QB)). In the pre-action disclosure ruling, HHJ Moloney QC observed that potential claimants contemplating defamation litigation against unknown authors face extreme difficulty when assessing their likelihood of success, by virtue of the requirement to satisfy the “serious harm” threshold of section 1 Defamation Act 2013. In these cases, applying for pre-action disclosure from a prospective defendant or third party can aid their assessment of the value and validity of their claims, prior to commencing.
Ordinarily, where a business or person is attacked in this way online, there are three avenues to explore:
- A potential claimant may apply for a pre-action disclosure order from the prospective defendant to disclose information in order to prove the identity (this only works, of course, if there is already some evidence pointing to the potential defendant).
- Likewise, prospective claimants could apply for a Norwich Pharmacal order. This is a specific type of discretionary pre-action order for disclosure which, if successful, orders a relevant third party to disclose information to reveal the identity of the wrongdoer. For instance, a Norwich Pharmacal order could be obtained from a web platform, akin to the Heir Hunters dispute.
- Finally, following the trail of mistakes left by the anonymous attacker can lead to a discovery of their true identity. In our experience, this occurs more often than not. Attackers will often lead clues or digital footprints which point to their identity.
Patently, once an anonymous online war has been waged against you, it is clear from the Heir Hunters dispute that an application for pre-action disclosure is now a key tactic for combat.
This post originally appeared on the Himsworths Legal blog and is reproduced with permission and thanks