Arnold Ayoo has appeared successfully in the High Court (QBD) before Mr Justice Chowdhury QC in a case against Reach PLC, the parent company of numerous publishers (which produce newspapers including the Daily Mirror and Express).

The case (Disley v Reach PLC, October 2018) involved an application for a Norwich Pharmacal Order (‘NPO’) by the Claimant – seeking disclosure, from Reach PLC, of the name, address, email address and IP address of an anonymous user who was leaving allegedly defamatory comments on an online version of a newspaper article.

The background facts were as follows:

  • In April 2006, the Claimant (‘C’) was convicted of conspiracy to corrupt a police officer and sentenced to 6 months imprisonment. Around the same time, the Newspaper news paper ran a story about the matter, naming C.
  • Upon his release from prison, C made an effort to turn his life around and opened a successful business. C also pursued an acting career, and in 2015, featured in a Hollywood film (‘Creed’) playing a role as a boxing trainer.
  • On 12 August 2017, the Newspaper published a story in the print and online editions headlinedLiverpool crook won role in Sylvester Stallone movie Creed”. The story highlighted the circumstances around C’s aforementioned conviction and stated that C had appeared in the Creed film – as well as questioning how he had obtained entry into the US given his previous conviction.
  • Between 12 and 13 August 2017, an online user posted a number of online comments variously accusing C of being a drug dealer, police informant, tax evader and ‘thug’.

Chowdhury J granted the disclosure order sought by C against Reach PLC, finding that the comments met the relevant defamatory threshold and that the perpetrator should be identified so that he could be sued by C. Chowdhury J’s judgment and the case in general was worthy of note for a number of reasons:

1         Almost all other NPO’s involve an order against the publishing company (or an editor involved in that company). This case was fairly novel in that it involved an order against the parent company of the publisher. In this case the publisher was Trinity Mirror North West Limited but the order was obtained against Reach PLC. It shows that, for the purpose of an NPO, the parent company can be treated as being ‘mixed up’ in the tort in the same way as the publisher itself.

2         The last reported case against a Newspaper was in 2011 – this case involved comprehensive and important clarification of the test for NPO’s – and particularly against newspapers (which involves further discretionary factors). Chowdhury J looked at the relevant authorities and deduced from the dicta a number of ‘factors’ relevant to him exercising discretion in the case of newspapers

3         The last cases on NPO’s were before the current GDPR regulations (e.g. Clift v Clarke [2011] EWHC 1164 (QB) which was the leading authority beforehand). Those cases involved considering the old Schedule 2 to the Data Protection Act 1998, which is no longer in existence. Mr Justice Chowdhury therefore considered the court’s exercise of the NPO jurisdiction in the current GDPR era, and noted that the GDPR provisions that could otherwise protect an an online comment poster, do not prevent an NPO being made. The Judge relied on provisions in the 2018 Data Protection Act which disapply the GDPR Protections to disclosure required by a court order. This updated the test in light of the current data protection conditions.

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