Richard (Raziel) Davidoff v Google LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] EWHC 1958 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-000977 |
[2023] EWHC 1958 (KB)
THE HONOURABLE Mr Justice Nicklin
Case No: KB-2023-000977
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett KC (instructed by Patron Law) for the Claimants
The Defendant did not attend and was not represented
Hearing date: 25 May 2023
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties and their representatives by email and by release to The National Archives. The date and time for hand-down is deemed to be 2pm on 28 July 2023.
By Part 8 Claim Form issued on 15 February 2023, the Claimants seek Norwich Pharmacal relief against the Defendant (“the Application”).
A: The parties and the Trustpilot Reviews
The Fifth and Sixth Claimants are companies that operate a property management/estate agency business under the name ABC Estates in North London. They claim to have been the victims of what they call “ fake reviews” posted by several people on Trustpilot (“the Reviews”). Previously, the Claimants have been granted a Norwich Pharmacal order against Trustpilot which has enabled them to identify the email addresses associated with the accounts that had posted the Reviews. Each email account was registered with the Defendant's Gmail platform. These email addresses were used by the people who posted the Reviews to register with Trustpilot. The purpose of this further Norwich Pharmacal application is to attempt to identify the individuals who control or operate these email addresses and, ultimately, to seek to demonstrate that these are the individuals who posted the Reviews.
As part of the evidence, the Claimants have provided copies of the Trustpilot page on which the Reviews were posted. Overall, ABC Estates has received a two-star rating of “ poor”. This score is based on a total of 28 reviews. 93% of the reviews (i.e. 26 of the 28) gave ABC Estates a one-star rating. Two reviews gave ABC Estates a five-star rating. These summary statistics are provided at the top of the Trustpilot review page, with individual reviews being displayed below. Visitors to the website can choose to have the reviews displayed based on relevance or date. The default setting is relevance. A visitor to the website would have to scroll down to read the reviews that are displayed.
I have set out, in a table in the Annex to this judgment, details of each Review relied upon by the Claimants. The Claimants have identified, through previous applications, the IP address from which each Review was posted. The geographic location associated with an IP address can readily be established online. This may indicate the location of the person when s/he posted the relevant Review. However, if the person uses a virtual private network (“VPN”), this can generate a different IP address (and therefore different location). The table shows only those Reviews which, by the time of the hearing, were still pursued in the Application. The Claimants have removed some targets since issuing the Application.
B: Previous claims for defamation brought in respect of anonymous reviews
In 2021, the Claimants brought a claim for libel against two individuals, Dhir Doshi and Thomas Govan, in relation to anonymous online reviews alleging fraud and dishonesty. The proceedings were resolved by agreement with the payment of damages and costs and with the defendants joining in a statement in open court apologising to the Claimants. The Claimants can therefore point to previous instances where they have been the target of anonymous online defamatory publications. Mr Doshi and Mr Govan have assured the Claimants that they are not responsible for the Reviews.
C: Evidence in support of the Application
The Application was originally supported by the witness statement of the Claimants' solicitors, Mark Lewis, dated 15 February 2023. Mr Lewis set out the following information that the Claimants had obtained in respect of the Reviews:
“The [Reviews] may be grouped by themes – and indeed the strikingly similar language – which is used in each case. There are allegations of (a) rudeness, aggression and incompetence; (b) aggression to a female relative; (c) references to undertaking research about [the Claimants] (in particular Richard Davidoff) online. (In one case, the review gives the wrong first name as ‘David’, which would be unlikely is the person had in fact undertaken the Google search suggested.) The majority of these reviews are from accounts who have had only… one activity ever, which is to publish the single defamatory review. Secondly, where the accounts have posted statements about other businesses, on each occasion the posts are also one-star reviews ostensibly calculated to destroy a business activity. The account of ‘Lisa Mathieson’ has in fact posted two such reviews, both about the Claimants.
…
The Claimants intend to commence proceedings for libel and/or malicious falsehood, in order to obtain damages and an injunction to prevent the ongoing campaign. To that end the Claimants seek the relief sought in order to identify the individual(s) who have posted the [Reviews].”
Mr Lewis gave the following further details under a heading “ Causes of action”:
“The Reviews are defamatory of both the Companies and my individual clients. Richard Davidoff is named in the review:
(a) It is the claimants' case that each of the individual claimants is closely identified with the company through their work: this is a family business, which largely operates in and around Jewish communities in North London. Each of the individual claimants drives an ABC Estates branded car. Moreover, these reviews are on sites designed to be looked at by those seeking to do business with the claimants.
(b) The reviews contain a number of serious and highly defamatory allegations repeatedly published to relevant large audiences and are likely to cause the claimants serious harm and serious financial loss.
The Fake Reviews also constitute malicious falsehoods. They are false, fabricated statements which Unknown person(s) know are untrue, but which are calculated to cause pecuniary damage to the Companies and to my individual clients…”
No further evidence was provided with the Application Notice. The Claimants provided no actual evidence of any serious harm to their reputation being caused by the Reviews (as required by s.1 Defamation Act 2013). Mr Lewis' statement on this point was nothing beyond assertion in the most general terms.
In a second witness statement, dated 19 May 2023, Mr Lewis provided the following further information:
(1) Three of the Reviews had, since their original publication been removed (or ‘filtered’) by Trustpilot (Reviews 3, 4 and 6), suggesting that Trustpilot considered that there was something suspicious about the Reviews.
(2) As to identification of the Claimants in the Reviews (an essential ingredient of a cause of action for defamation – see further [48.] below), Mr Lewis added:
“The [Reviews] concern ‘ABC Estates’ and are directly linked to the company website ‘www.abcestates.co.uk’, this is a trading name for ABC Block Management Limited and ABC Hendon Limited, the fifth and sixth claimants respectively. Similarly, the first through the fourth claimants are, as stated, members of the same family who run and manage the Companies which are known to be family businesses. They each drive ‘ABC Estates’ branded vehicles, and are known to the Jewish communities in North London. The claimants are therefore all synonymous with one another”
(3) As to serious financial harm (required to be demonstrated by a company that trades for profit in a claim for defamation – see [51.]–[53.] below), Mr Lewis added:
“The Fifth and Sixth Claimants cannot point to any specific business which they have lost as a result of the publications. Their case is that potential clients would visit Trustpilot in order to read reviews about them before deciding whether to engage them. If a potential client read any one of the reviews in issue, it is likely that the potential client would therefore not instruct the Fifth or Sixth Claimants. It is inferred that this must have occurred on several occasions. The purpose of Trustpilot is to enable such decisions to be made with the knowledge provided by the website. The consequential loss of contracts would cause serious financial loss.”
(4) Finally, Mr Lewis exhibited the terms and conditions of the Trustpilot website which prohibit creating false accounts.
The evidence that the Claimants have obtained, concerning IP addresses connected to the Reviews does, at least in part, support their case that some of the Reviews have been posted by the same person. The IP addresses used by the users named Lisa Matherson, Michelle Stonefield and Sophie Adler are all connected, being the same IP address for different posts or IP addresses that are geographically located very close to each other. The IP addresses used by the users named Anthony Redfield and Stephen Michaels are the same and these users and those named Sharon Macenzie and Andrea Luckovic all share IP addresses linked to Tamworth.
On 18 May 2023, the Claimants' solicitors sent a letter by email to each of the target Gmail addresses, identifying the Review to which the Claimants took objection and asking whether each individual would identify him/herself. Mr Bennett KC told me at the hearing that there had been no response to these emails.
D: Directions for a hearing of the Application
Ordinarily, Norwich Pharmacal applications are heard and determined by the Assigned Master. Upon...
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