The Law of Defamation and the Internet

Update 11

Totalise plc v Motley Fool Ltd [2001] EWCA Civ 1897 (19 December 2001)

English Court of Appeal decision concerning an application to uncover the anonymous author of allegedly defamatory online postings

This decision was an appeal from the judgment of Owen J of the English High Court, Queen’s Bench Division discussed in paragraphs 5.44–5.51 of The Law of Defamation and the Internet.

The claimant had sought an order against two defendants to compel them to disclose all material in their possession which might lead to the identification of ‘Zeddust’, an anonymous contributor of defamatory material concerning the claimant to bulletin boards hosted by the defendants. Owen J had granted the relief sought, observing that to do otherwise ‘would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the Internet’. Owen J ordered the defendants to pay the claimant’s costs, on the basis that ‘it was perfectly plain from the outset that the postings on both websites were highly defamatory and that, accordingly, the claimant was the victim of a sustained campaign amounting to an actionable tort.’

The defendants appealed only on the question of costs. The Court of Appeal allowed the appeal, observing that ordinarily, in such applications, the applicant should be ordered to pay the costs of the party making the disclosure including the costs of making the disclosure. Their Lordships said that there may be cases where the circumstances require a different order, but they do not include cases where:

§ the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it;

§ the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations;

§ the party could be subject to proceedings if disclosure was voluntary;

§ the party would or might suffer damage by voluntarily giving the disclosure; or

§ the disclosure would or might infringe a legitimate interest of another.

A copy of the decision is available by following this link.

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