G & G v Wikimedia Foundation Inc.
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 02 December 2009 |
| Neutral Citation | [2009] EWHC 3148 (QB) |
| Docket Number | Case No: HQ09X |
| Court | Queen's Bench Division |
| Date | 02 December 2009 |
[2009] EWHC 3148 (QB)
Before : THE HONOURABLE MR JUSTICE TUGENDHAT
Case No: HQ09X
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Thomas Croxford (instructed by Pinsent Masons LLP) for the Applicants
The Respondent did not appear and was not represented
Hearing dates: 25 November 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat :
The Applicants have applied to the court for an order requiring the Respondent to disclose the IP address of a registered user of the website http://www.wikipedia.org/ (“Wikipedia”). The user in question had made an amendment to an article available on Wikipedia. I shall refer to the IP address requested as “the IP information” and to the amendment to the article on Wikipedia as “the amendment”. The article in Wikipedia relates to the First Applicant and the amendment relates to both Applicants. The amendment is identified more particularly in the Order which I made at the end of the hearing.
The form of order the Applicants apply for is commonly called a Norwich Pharmacal Order. An example of one made in similar circumstances to the present is in Totalise plc v Motley Fool Ltd [2001] EMLR 29. It is an order that can be made against a person who is not alleged to be a wrongdoer, but who has become caught up in the wrongdoing of others, in circumstances where he may be compelled to identify, or assist in the identification, of the person who is the wrongdoer. See the White Book (2009 edn) notes to CPR 31.18.
Before the hearing commenced, I ordered that it be in private (having read the papers in advance). At the end of the hearing I made the order that the Respondent disclose the IP information. The orders that I made also contain provisions restricting what is to be accessible to the public on the court file, and other provisions preventing disclosure of the identity of the Applicants.
At the end of the hearing, I also stated that I would give my reasons in writing for not making parts of the order that had initially been sought. These are they.
THE FACTS OF THE CASE
The First Applicant is a mother (“the mother”), and the Second Applicant is her young child. It is the mother's case that the information which is contained in the amendment is private and confidential information of a sensitive nature concerning herself and her child. She seeks the IP information from the Respondent in order that she may identify the alleged wrongdoer who has disclosed this private material, and to apply for such legal remedy as she and her child may be entitled to prevent any further breach of their privacy and disclosure of their confidential information.
The background against which this application is made is that the mother, in her professional life, is in dispute with another person who is making claims against a company with which she is associated. The mother has very recently received two anonymous communications. One is a print out of a news article on a website about the conviction of a director of a company for theft in connection with expenses claims. This story has nothing to do with the mother or any company with which she is connected. But she understood it to be linked to threats to disclose information about her professional expenses made to her by the person who is making a claim against the company. The mother denies any wrongdoing relating to her claims for expenses. The second anonymous letter purports to be a copy of a letter to a third party disclosing the private and confidential information included in the amendment. The purported disclosure to the third party is ostensibly with a view to procuring that that information be published in a newspaper. It has not been published in a newspaper. However, there have been recent occasions when journalists have stated that an individual was offering to sell a story about the mother and her child. The person who is making the claim against the company is an employee of the company with which she is associated, and the contract of employment includes a confidentiality clause.
In ordinary language, the mother believes that she is the subject of an attempt at blackmail. On the information before the court, she has reason to believe that. It is the experience of this court that applicants for injunctions to restrain publication of private information, and for related relief, such a Norwich Pharmacal order, are not infrequently in a similar situation in this respect to the mother. But even if there is no link between the person making the claims against the company, the two anonymous letters, and the amendment, the position of the Applicants is no weaker. If there is no such link, there remains a very strong case that private information has been disclosed by someone. The range of suspects would then include professional advisers.
In her witness statement the mother states that she has asked the person making the claim against the company whether (s)he is the person who sent the first anonymous letter received by the mother. That person denied having sent it, but the mother remained sceptical.
THE LAW
Particular provisions of the CPR are set out below. But the overriding provisions of the law relating to any application involving freedom of expression and open justice are Arts 6 and 10 of ECHR , and the Human Rights Act 1998 s.12, as follows:
“Art 6 – Right to a Fair Trial
…. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial … where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Art 10 – Freedom of Expression
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence,…
s12 (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression….
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—…
(ii) it is, or would be, in the public interest for the material to be published; …”
ANONYMITY OF THE PARTIES
As the title to this judgment shows, I made orders giving anonymity to the Applicants. One provision which was sought, but which I did not grant, was an order giving anonymity to the Respondent.
There has been an exchange of letters and e-mails between lawyers for the Applicants and for the Respondent. The Respondent indicated that it would not disclose the IP information without a court order being made, but neither would it oppose the making of an order requiring such disclosure. It gave no indication that it required anonymity for itself, and I could see no grounds for giving anonymity to it. I set out below the gist of the correspondence between the Applicants' solicitors and lawyers for the Respondent.
There are some cases in which anonymity must be given to a respondent, because if it is not, then the naming of the respondent may indirectly enable readers who already know other information about the case to identify of the claimant (sometimes referred to as jigsaw identification). But the Applicants do not suggest that applies in this case.
OPEN JUSTICE – ACCESS TO THE COURT FILE
A second provision which was sought but which I granted only in a limited form was as follows:
“Pursuant to CPR 5.4C(4), a non-party may not obtain a copy of any statement of case in the proposed claim between the Applicant and the Respondent until further order”.
No reason was advanced, in evidence or argument, as to why the statement of case against the Respondent should not be obtained by a non-party in the normal way. A statement of case includes a Claim Form ( CPR 2.3). The corresponding order which I made (subject to a right to apply to vary it) reads:
“Pursuant to CPR 5.4C(4), a non-party may not until further Order obtain a copy of any statement of case in the proposed claim between the Applicant and the Respondent other than one edited to remove any reference to the names of the Claimants or the user name shown in the confidential annex.”
CPR 5.4 C provides:
“Supply of documents to a non-party from court records
5.4C (1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…
(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –
;…
(c) the claim has been listed for a hearing; or
(d) judgment has been entered in the claim.
(4) The court may, on the application of a party or of any person...
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