A Norwich Pharmacal Order (NPO) is a tool used by litigants to discover the identity of an unknown wrongdoer from a third party. An NPO typically directs a third party to disclose information to an applicant about a wrongdoer’s identity.
In Ireland, in order to successfully obtain an NPO, an applicant must show that the litigant has a very clear and unambiguous case of wrong and that there is proof of wrongdoing in relation to each element of whatever tort is complained of. These two requirements are as per Mega Leasing UK Limited v Barrett (No 2) and O’Brien v Red Flag Consulting Limited respectively.
The use of NPOS has developed recently, particularly in Ireland. Earlier this year the Health Service Executive sought an NPO against Chronical Security Ireland in relation to data and material obtained by unidentified parties relating to the cyber-attack on the HSE. The HSE was granted the NPO which required Chronical Security Ireland to provide the subscriber details of the persons who both uploaded and downloaded the confidential materials which had been taken.
Additionally in Board of Management of Salesian Secondary College (Limerick) v Facebook the applicant school sought an NPO compelling Facebook to identify the persons behind a specific Instagram account. The school alleged that the account published objectionable content relating to individuals and events at the school. However, although the school had established a clear and unambiguous case of wrongdoing, it had not established proof of wrongdoing in respect of an element of tort. The school sought the NPO for the purpose of disciplinary action rather than litigation against the account holder. The High Court proposed referring the matter to the ECJ to clarify the points of law on this area as follows:
1. Whether there was an implied right under the Charter of Fundamental Rights of the European Union to post material anonymously.
2. If the proper threshold for granting an NPO required an established, strong, prima facie case of tortious wrong doing and whether the applicant had to show an intention to pursue legal proceedings.
3. Whether a potentially affected person could be provide an opportunity to make submissions anonymously to the court as to whether or not the order should be made.
Unfortunately, the school has since withdrawn its application and so these questions remain unanswered. The proposed referral does demonstrate however, that the application for an NPO may evolve beyond its current restraints.
Another element to take into consideration when dealing with NPOS are legal costs. Naturally the cost of complying with or defending an NPO application can be extensive and a third-party business who is innocently involved in an alleged wrongdoing will be understandably nervous when exposing themselves to same.
The issue of costs was dealt with in the case of Parcel Connect Limited v Twitter. In that matter the defendant had refused to reveal the identity of the user without a Court Order although it maintained a neutral position and did not specifically challenge the issuing of the NPO. On that occasion the court made no order as to costs of either the application or the disclosure of information.
However, in the case of Blight v The Commissioner of An Garda Siochana, the defendant mounted a robust defence to the NPO. The court awarded the costs of the proceedings in favour of the plaintiff. The court observed that it did not understand the position of the defendant in vigorously defending the application, or opposing same at all, but observed that with regard to the costs of making disclosure, the cost of same may have been recoupable if the defendant hadn’t objected to the order. In that matter, the court made no order as to the costs of disclosure but did award the costs of the application to the plaintiff.
Another recent High Court decision related to Portakabin v Google highlighted the possibility of the defence of a ‘whistle-blower’. In that matter, the Applicant, Portakabin, asked the court to grant an NPO requiring Google to disclose the information associated with a Gmail account which had allegedly spread defamatory information and remarks in relation to both the applicants’ company and its employees. Once the application had issued, the court received a letter from the anonymous sender of the emails who attempted to assert his status as a whistle-blower. This whistle-blower asked the court to refuse to make an order releasing his identity and confirming that no further communication would issue from the account as it had been deleted.
Additionally in relation to that application, Google itself did not make an appearance to the application. It had corresponded with the applicant in relation to an appropriate form of order which the court might issue.
Interestingly, Google attempted to reserve its right to raise issue with the Court Order if it was not consistent with the draft it had approved.
The court however expressed its reservation as to whether or not Google would have been entitled to contest the application and reopen proceedings if dissatisfied with the court order in circumstances where they did not attend for the application. However, as the draft and the court order in its final format were not materially different, the issue did not come before the court again.
The court granted the NPO sought by Portakabin subject to an undertaking that the applicant would only use the information to pursue the individual for defamation and/or redress.
The court outlined the difference between the case of Portakabin and Salesian Secondary College (Limerick) v Facebook. The reason for granting the NPO in the Portakabin matter was predominantly for the purpose of litigating alleged defamation and wrongdoing. In Salesian the school sought the identity of the person for disciplinary action only. The court noted that in Portakabin, if the identity of the account holder was revealed to be an employee of the applicant, it may seek to assert disciplinary action at that stage. However. that was not the primary intention of the application for the NPO and so the NPO was granted.
In Portakabin, the court also considered whether the Protected Disclosures Act 2014 protected a person who described themselves as a whistle blower. The court held that a person could not protect themselves within the meaning of the Protected Disclosures Act 2014 simply by declaring themselves to be a whistle-blower. In addition, it was noted that immunity from civil prosecution from making a protected disclosure did not allow for immunity for defamatory comments.
The consideration of the court in the Portakabin decision indicates the potential for development in NPOs particularly in relation to technological advances in future cases to be considered.
If you have any query in relation to a litigative or commercial matter please do not hesitate to contact Donna Phelan, Brendan Dillon or Conor White here at 01 2960666.